Choctaw Builders, Inc.

National Labor Relations Board - Board Decisions

Mar 14, 2003

338 N.L.R.B. 799 (N.L.R.B. 2003)

CHOCTAW BUILDERS, INC. 799
Choctaw Builders, Inc. and International Association
of Bridge, Structural, Ornamental and Reinforc-
ing Iron Workers, Local 48. Cases 17–CA–
20333 and 17–CA–20515
March 14, 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 charges and amended
charges filed by the Union on September 23 and Decem-
ber 28, 1999, and January 26, and April 19, 2000, the
General Counsel issued an order consolidating cases,
consolidated complaint and notice of hearing on June 27,
2001, against Choctaw Builders, Inc., the Respondent,
alleging that it has violated Section 8(a)(3) and (1) of the
National Labor Relations Act.1 On August 21, 2001, the
Respondent filed an answer to the consolidated com-
plaint. On August 22, 2001, the Respondent withdrew its
answer.
On September 10, 2001, the General Counsel filed a
Motion for Summary Judgment with the Board. On Sep-
tember 14, 2001, 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 consolidated complaint affirma-
tively states that unless an answer is filed within 14 days
of service, all the allegations in the consolidated com-
plaint will be considered admitted. Further, the Region
by letters dated August 15 and 17, notified the Respon-
dent that unless an answer was received by August 22, a
Motion for Summary Judgment would be filed.
Here, according to the uncontroverted allegations in
the Motion for Summary Judgment, although the Re-
spondent initially filed an answer on August 21, 2001,
the Respondent subsequently withdrew that answer.2

e.

1 The Motion for Summary Judgment inadvertently refers to the date
that the consolidated complaint issued as July 27, 2001.
2 The exhibits attached to the Motion for Summary Judgment indi-
cate that on August 21, 2001, the Region received a letter by facsimile
The withdrawal of an answer has the same effect as a
failure to file an answer, i.e., the allegations in the
consolidated complaint must be considered to be tru 3
Accordingly, based on the withdrawal of the Respon-
dent’s answer to the consolidated complaint, and in the
absence of good cause being shown otherwise, we grant
the General Counsel’s Motion for Summary Judgment
insofar as the consolidated complaint alleges that the
Respondent violated Section 8(a)(3) and (1) of the Act
by unlawfully refusing to hire 13 applicants on various
dates in 1999 because they assisted the Union and en-
gaged in concerted activities, and to discourage employ-
ees from engaging in these activities.4 We agree that the
undisputed complaint allegations are sufficient to estab-
lish violations of Section 8(a)(1) and (3) under the stan-
dards set forth in FES, 331 NLRB 9, 12–16 (2000), supp.
decision 333 NLRB 66 (2001), enfd. 301 F.3d 83 (3d
Cir. 2002), supp. decision 338 NLRB 649 (2002). See
Jet Electric Co., 334 NLRB 1059 (2001); see also
Budget Heating & Cooling, 332 NLRB No. 132 (2000)
(not reported in Board volumes).
Under the FES standards, however, the complaint alle-
gations are insufficient to enable us to determine the ap-
propriate remedy. In this regard, the Board held in FES
that in cases involving more than one applicant, the Gen-
eral Counsel, in order to justify an affirmative remedy of
instatement and backpay, must show at the unfair labor
practice stage of the proceeding the number of openings
that were available. 331 NLRB at 14. See also Jet Elec-
tric Co., supra.
The consolidated complaint alleges that the Respon-
dent refused to hire the 13 discriminatees, but does not
allege how many openings were available. Because the
General Counsel bears the burden of proving, at the ini-
tial unfair labor practice stage of the proceeding, that
there were a sufficient number of openings available for
the discriminatees, the complaint’s allegations do not
establish that a backpay and instatement remedy is war-
ranted. Jet Electric Co., supra. We shall therefore hold

transmission from the Respondent, signed by its agent Wayne Kan-
nady, generally denying the allegations in the consolidated complaint
and stating that the Respondent was no longer in business. On August
22, 2001, the Region received another letter sent by facsimile transmis-
sion from the Respondent, also signed by Wayne Kannady, stating: “I
did not intend for my fax sent to the NLRB on August 21, 2000 [sic] to
be an answer to any charges. However, if the NLRB did consider it as
an answer I hereby withdraw my answer.” In these circumstances, we
need not pass on whether the Respondent’s August 21, 2001 letter was
a sufficient answer under Sec. 102.20 of the Board’s Rules and Regula-
tions.
3 See Maislin Transport, 274 NLRB 529 (1985).
4 The fact that the Respondent may no longer be in business is not a
basis for denying the Motion for Summary Judgment. See Beaumont
Glass Co., 316 NLRB 35 fn. 1 (1995).
338 NLRB No. 112
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 800
in abeyance a final determination of the appropriate rem-
edy,5 pending a remand of this case for a hearing before
an administrative law judge on the limited issue of the
number of openings that were available to the discrimi-
natees.6
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, an Oklahoma
corporation with an office and place of business in India-
nola, Oklahoma, has been engaged as a third party pro-
vider of labor services to Flintco Companies, Inc.
(Flintco). The Respondent, in conducting its business
operations described above, annually provides services
valued in excess of $50,000 for Flintco, an enterprise
within the State of Oklahoma.
Flintco, an Oklahoma corporation with its principal
place of business in Tulsa, Oklahoma, is engaged in
business as a general construction company. During the
12-month period ending December 31, 1999, Flintco
purchased and received at jobsites in the State of Okla-
homa goods valued in excess of $50,000 directly from
points outside the State of Oklahoma.
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.
II. ALLEGED UNFAIR LABOR PRACTICES
About the dates in 1999 set forth opposite their respec-
tive names, the Respondent has refused to consider for
hire or to hire the applicants named below:

John Norman August 20
David Cloud August 20
Jerry Collins August 27
Jimmy Hestand September 20

5 The Board does not provide the standard FES remedy for a refusal-
to-consider for hire violation where a more comprehensive instatement
and backpay remedy for a refusal-to-hire violation is appropriate. This
is so because the limited remedy for a refusal-to-consider violation is
subsumed within the broader remedy for the refusal-to-hire violation.
Budget Heating & Cooling, supra at 132 fn. 3. Accordingly, whether,
or the extent to which, an affirmative remedy for the refusal-to-consider
violations is warranted in this case will depend on whether the evidence
shows that enough openings were available to justify the more compre-
hensive remedy of instatement and backpay for the refusal-to-hire
violation. See Jet Electric Co., supra at fn. 2.
6 A hearing will not be required if, in the event that the General
Counsel amends the complaint, the Respondent fails to answer, thereby
admitting evidence that would permit the Board to resolve the remedial
instatement and backpay issue. In such circumstances, the General
Counsel may renew the Motion for Summary Judgment with respect to
this specific affirmative remedy. See Jet Electric Co., supra at 1060 fn.
2.
Ernie Bivins September 21
Bobby Lee September 23
Luke Harbin September 23
Herron Collins September 29
Robert White October 14
Kelly Holmes November 18
Derrick Haggard November 18
Thomas Gehrke, Jr. November 18

From about August 24 to about October 26, 1999, the
Respondent refused to consider for hire or to hire appli-
cant Michael (Mickey) Lea.
The Respondent engaged in the conduct described
above because the named applicants assisted the Union
and engaged in concerted activities, and to discourage
employees from engaging in these activities.
CONCLUSION OF LAW
By the acts and conduct described above, the Respon-
dent has been interfering with, restraining, and coercing
employees in the exercise of the rights guaranteed in
Section 7 of the Act, and has discriminated in regard to
the hire or tenure or terms or conditions of employment
of its employees, thereby discouraging membership in a
labor organization, and has thereby engaged in unfair
labor practices affecting 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 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 failing to consider for hire or to hire appli-
cants John Norman, David Cloud, Jerry Collins, Jimmy
Hestand, Ernie Bivins, Bobby Lee, Luke Harbin, Herron
Collins, Robert White, Kelly Holmes, Derrick Haggard,
Thomas Gehrke Jr., and Michael (Mickey) Lea, we shall
order the Respondent to expunge from its files any and
all references to the unlawful refusal to consider for hire
or to hire these individuals, and to notify them in writing
that this has been done, and that the unlawful conduct
will not be used against them in any way.7
ORDER
The National Labor Relations Board orders that the
Respondent, Choctaw Builders, Inc., Indianola, Okla-
homa, its officers, agents, successors, and assigns, shall
1. Cease and desist from
7 As previously stated, we shall hold in abeyance the determination
of any further appropriate affirmative remedy.
CHOCTAW BUILDERS, INC. 801
(a) Refusing to consider for hire or to hire applicants
because they assisted the Union and engaged in con-
certed activities, or to discourage employees from engag-
ing in these 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, remove
from its files any and all references to the unlawful re-
fusal to consider for hire or to hire John Norman, David
Cloud, Jerry Collins, Jimmy Hestand, Ernie Bivins,
Bobby Lee, Luke Harbin, Herron Collins, Robert White,
Kelly Holmes, Derrick Haggard, Thomas Gehrke Jr., and
Michael (Mickey) Lea, and within 3 days thereafter, no-
tify them in writing that this has been done, and that the
unlawful conduct will not be used against them in any
way.
(b) Within 14 days after service by the Region, post at
its facility in Indianola, Oklahoma, copies of the attached
notice marked “Appendix.”8 Copies of the notice, on
forms provided by the Regional Director for Region 17,
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 August 20, 1999.
(c) 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.

8 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 Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”

It IS FURTHER ORDERED that the issue of how many job
openings were available at times relevant to John Nor-
man’s, David Cloud’s, Jerry Collins’, Jimmy Hestand’s,
Ernie Bivins’, Bobby Lee’s, Luke Harbin’s, Herron
Collins’, Robert White’s, Kelly Holmes’, Derrick Hag-
gard’s, Thomas Gehrke Jr.’s and Michael (Mickey) Lea’s
applications for work is remanded to the Regional Direc-
tor for appropriate action consistent with this Decision
and Order.
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 refuse to consider for hire or to hire ap-
plicants because they assisted the Union and engaged in
concerted activities, or to discourage employees from
engaging in these 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, remove from our files any and all references to
our unlawful refusal to consider for hire or to hire John
Norman, David Cloud, Jerry Collins, Jimmy Hestand,
Ernie Bivins, Bobby Lee, Luke Harbin, Herron Collins,
Robert White, Kelly Holmes, Derrick Haggard, Thomas
Gehrke Jr., and Michael (Mickey) Lea, and WE WILL,
within 3 days thereafter, notify them in writing that this
has been done, and that the unlawful conduct will not be
used against them in any way.

CHOCTAW BUILDERS, INC.