Civetta Cousins

National Labor Relations Board - Board Decisions

Feb 11, 1999

327 N.L.R.B. 114 (N.L.R.B. 1999)

1
327 NLRB No. 114
NOTICE: This opinion is subject to formal revision before publication in the
Board 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.
Civetta Cousins, J.V. and Antonio Altomare. Case 2–
CA–29518
February 11, 1999
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS HURTGEN
AND BRAME
Upon a charge filed by Antonio Altomare on June 28,
1996, the General Counsel of the National Labor Rela-
tions Board issued a complaint on June 12, 1998, against
Civetta Cousins, J.V., 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 Respondent failed to file an
answer.
On November 13, 1998, the General Counsel filed a
Motion for Summary Judgment with the Board. On No-
vember 18, 1998, 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 a response to the Notice to Show Cause.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Summary Judgment
Sections 102.20 and 102.21 of the Board’s Rules and
Regulations provide 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 notes
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 16, 1998, notified the Respondent
that unless an answer were received by October 26,
1998, a Motion for Summary Judgment would be filed
with the Board.
The Respondent did not file either an answer to the
complaint or a request for an extension of time to do so,
before the October 26, 1998 deadline given in the re-
minder letter dated October 16, 1998. In response to the
Notice to Show Cause, however, the Respondent’s attor-
ney filed a “Response to Petition for Summary Judg-
ment” with an answer to the complaint attached. The
response states that the Respondent retained the attorney
on November 17, 1998, at which time the attorney im-
mediately contacted the Regional Office. The Response
to Petition for Summary Judgment contains no other ex-
planation why the Respondent failed to answer the com-
plaint despite the appropriate notice and warning that, if
no answer was forthcoming by October 26, a motion for
summary judgment would be filed. Similarly, the letter
does not explain why the Respondent did not request an
extension of time to file an answer.
We assume that the Respondent did not have legal rep-
resentation until November 17, 1998. In determining
whether to grant a Motion for Summary Judgment on the
basis of a respondent’s failure to file a sufficient or
timely answer, the Board has, as a general matter, shown
leniency to respondents proceeding without the benefit of
counsel. Thus, the Board will generally not preclude a
determination on the merits of a complaint if it finds that
a pro se respondent has filed a timely answer which can
reasonably be construed as denying the substance of the
complaint allegations.1 In the instant case, however, the
Respondent did not respond to the complaint’s allega-
tions or contact the Regional Office, until after the Mo-
tion for Summary Judgment was filed on November 13,
1998, despite the October 16, 1998 reminder letter.
Further, it has provided no explanation for its failure to
do so. In these circumstances, we find that the Respon-
dent’s answer to the complaint attached to its response to
the Notice to Show Cause is untimely. See Kenco Elec-
tric & Signs, 325 NLRB No. 210 (July 17, 1998); Middle
Eastern Bakery, 243 NLRB 503, 504 fn. 1 (1979).
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 Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a corporation
with an office and place of business in the Bronx, New
York, has been engaged in the performance of construc-
tion work. Annually, the Respondent, in conducting its
business operations described above, purchases and re-
ceives at its Bronx, New York facility, goods and prod-
ucts valued at more than $50,000 directly from suppliers
located 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 Mason Tenders District Council of Greater New
York (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 Associated Brick Mason
Contractors of New York (the Association) has been an
organization composed of various employers engaged in
the construction industry, one purpose of which is to rep-
resent its employer-members in negotiating and admin-
istering collective-bargaining agreements with various
labor organizations, including the Union.

1 See, e.g., Harborview Electric Construction Co., 315 NLRB 301
(1994), and cases cited therein.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
At all material times, the Respondent has been an em-
ployer-member of the Association, and has authorized
the Association to represent it in negotiating and admin-
istering collective-bargaining agreements with various
labor organizations, including the Union.
In about July 1994, the Respondent entered into a
contract to perform construction work for the New York
City School Construction Authority (SCA) at a jobsite at
P.S. 20, located at 3050 Webster Avenue, Bronx, New
York.
At all material times, the Association and the Union
were parties to a collective-bargaining agreement, effec-
tive by its terms from September 1, 1993 through May
31, 1996, covering certain employees of the Respondent
employed at the P.S. 20 jobsite.
About May 20, 1996, Charging Party Antonio Alto-
mare lodged a complaint with the Union that non-Union
employees were doing certain work that was subject to
the collective-bargaining agreement. About May 21,
1996, SCA, through its agent Heine Arafat, restricted
Altomare’s access to the jobsite. This action was known
to, and ratified by, the Respondent. About June 21,
1996, the Respondent, through its job superintendent and
agent Stuart Wynnerman, suspended Altomare for a day.
About June 22, 1996, SCA, through Arafat, evicted Al-
tomare from the jobsite and threatened him with arrest
should he return. This action was known to, and ratified
by, the Respondent.
About June 24, 1996, the Respondent discharged Al-
tomare. Since that date, the Respondent has failed and
refused to reinstate, or to offer to reinstate, Altomare to
his former or a substantially equivalent position.
The Respondent engaged in all of the conduct de-
scribed above because Altomare assisted the Union and
engaged in concerted activities, and to discourage em-
ployees from engaging in those activities.
CONCLUSION OF LAW
By the acts and conduct described above, the Respon-
dent has discriminated in regard to hire or tenure or terms
and conditions of employment, thereby discouraging
membership in a labor organization, in violation of Sec-
tion 8(a)(3) and (1), 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)(3)
and (1) by suspending and discharging Antonio Alto-
mare, we shall order the Respondent to offer him 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. We also shall order the Respondent
to make Altomare whole for any loss of earnings and
other benefits suffered as a result 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 remove from its files any reference to Alto-
mare’s unlawful suspension and discharge, and to notify
him in writing that this has been done.
ORDER
The National Labor Relations Board orders that the
Respondent, Civetta Cousins, J.V., Bronx, New York, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging employees, suspending employees,
restricting employees’ access to worksites or evicting
employees from worksites, or otherwise discriminating
against its employees because they assist the Union and
engage in concerted activities, and to discourage em-
ployees from engaging in those 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
Antonio Altomare 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.
(b) Make Antonio Altomare whole for any loss of
earnings and other benefits suffered as a result of his
unlawful suspension and discharge, in the manner set
forth in the remedy section of this decision.
(c) Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful suspen-
sion and discharge of Antonio Altomare, and within 3
days thereafter, notify him in writing that this has been
done and that his suspension and discharge will not be
used against him in any way.
(d) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment rec-
ords, timecards, personnel records and reports, and all
other records necessary to analyze the amount of back-
pay due under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its facility in the Bronx, New York, copies of the at-
tached notice marked “Appendix.”2 Copies of the notice,
on forms provided by the Regional Director for Region
2, after being signed by the Respondent’s authorized

2 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.”
CIVETTA COUSINS, J.V. 3
representative, shall be posted by the Respondent 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 al-
tered, defaced or covered by any other material. In the
event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since May 21,
1996.
(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. February 11, 1999
John C. Truesdale, Chairman
Peter J. Hurtgen, Member
J. Robert Brame III, 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 the National Labor Relations Act and has ordered us to
post and abide by this notice.
WE WILL NOT discharge you, suspend you, or restrict
your access to or evict you from worksites, or otherwise
discriminate against you because you assist the Mason
Tenders District Council of Greater New York and en-
gage in concerted activities, and to discourage you from
engaging in those 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 offer Antonio Altomare full reinstatement to
his former job or, if that job no longer exists, to a sub-
stantially equivalent position, without prejudice to his
seniority or any other rights or privileges previously en-
joyed.
WE WILL make Antonio Altomare whole for any loss
of earnings and other benefits suffered as a result of his
unlawful suspension and discharge, with interest.
WE WILL remove from our files any reference to the
unlawful suspension and discharge of Antonio Altomare
and notify him in writing that this has been done and that
his suspension and discharge will not be used against
him in any way.
CIVETTA COUSINS, J.V.