CSI/Metro

National Labor Relations Board - Board Decisions

Jul 24, 1997

324 N.L.R.B. 11 (N.L.R.B. 1997)

1
324 NLRB No. 11
1 See U-Bee, Ltd., 315 NLRB 667 (1994).
NOTICE: This opinion is subject to formal revision before publication
in the Board volumes of NLRB decisions. Readers are requested to
notify the Executive Secretary, National Labor Relations Board,
Washington, D.C. 20570, of any typographical or other formal er-
rors so that corrections can be included in the bound volumes.
Contracting Services, Inc. d/b/a CSI/Metro and
Local No. 11, United Union of Roofers
Waterproofers and Allied Trades. Case 13–CA–
33632
July 24, 1997
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX AND
HIGGINS
Upon a charge and an amended charge filed by the
Union on August 23, 1995, and June 6, 1996, respec-
tively, the General Counsel of the National Labor Re-
lations Board issued a complaint on December 10,
1996, against Contracting Services, Inc. d/b/a
CSI/Metro, the Respondent, alleging that it has vio-
lated Section 8(a)(1) and (3) of the National Labor Re-
lations Act. On December 23, 1996, the Respondent
filed an answer to the complaint.
Thereafter, on April 9, 1997, the Respondent entered
into an informal settlement agreement providing, inter
alia, for the payment of backpay to the alleged
discriminatee in several installments over a specified
period, which was approved by the Acting Regional
Director for Region 13 on April 14, 1997. In an attach-
ment, the settlement contained the following provision:
In consideration of the Board granting a time-pay-
ment schedule, Respondent further agrees that, in
the event of any non-compliance by failure to
make required payments on the dates specified, or
to cure any such failure within fourteen days of
the specified payment date, the total amount of
backpay plus interest, shall become immediately
due and payable. Respondent agrees that after 14
days notice from the Regional Director of the Na-
tional Labor Relations Board, on motion for sum-
mary judgment by the General Counsel, Respond-
ent’s Answer to the instant Complaint shall be
considered withdrawn. Thereupon, the Board may
issue an order requiring Respondent to show
cause why said Motion of the General Counsel
should not be granted. The Board may, without
necessity of trial, find all allegations of the Com-
plaint to be true, and make findings of fact and
conclusions of law consistent with those allega-
tions adverse to Respondent on all issues raised
by the pleadings. The Board may then issue an
Order providing full remedy as specified in the
Complaint. The parties further agree that a Board
Order and U.S. Court of Appeals Judgment be en-
tered thereon ex parte.
By letters dated June 6 and 16, 1997, the Region re-
quested the Respondent to comply with the terms of
the settlement agreement by remitting the first payment
to the discriminatee that had been due on May 16,
1997. The letters further stated that if the Region did
not receive the payment by specified dates, a Motion
for Summary Judgment would be filed.
No payment having been received from the Re-
spondent, on June 30, 1997, the General Counsel filed
a Motion for Summary Judgment with the Board. On
July 1, 1997, 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 Respond-
ent filed no response. The allegations in the motion are
therefore undisputed.
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, un-
less 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.
Here, the undisputed allegations in the Motion for
Summary Judgment disclose that, although the Re-
spondent initially filed an answer to the complaint, it
subsequently entered into a settlement agreement
which provided for the withdrawal of the answer in the
event of noncompliance with the settlement agreement,
and such noncompliance has occurred. Accordingly,
we find that the Respondent’s answer has been with-
drawn by the terms of the April 14, 1997 settlement
agreement, and that, as further provided in that settle-
ment agreement, all the allegations of the complaint
are true.1
Accordingly, we grant the General Counsel’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 Downers
Grove, Illinois, has been engaged in business as a roof-
ing contractor. During the 12-month period preceding
the issuance of the complaint, the Respondent, in con-
ducting its business operations within the State of Illi-
nois, purchased and received at its Illinois facility
goods and materials valued in excess of $50,000 di-
rectly from points outside the State of Illinois.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6),
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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
National 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.’’
and (7) of the Act and that the Union is a labor organi-
zation within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
About August 10 and 11, 1995, the Respondent,
through its representative, Fred Vath, threatened em-
ployees with termination for engaging in protected
concerted or union activities.
In addition, about August 11, 1995, the Respondent,
through Fred Vath, threatened employees with the fil-
ing of a lawsuit against the Union if employees tried
to organize for the Union, and threatened employees
with plant closure if the Union tried to organize the
Respondent’s employees.
Finally, about August 11, 1995, the Respondent dis-
charged, and has since refused to rehire, employee
Mitchell Terhaar, because Terhaar formed, joined,
and/or assisted the Union and engaged in concerted ac-
tivities and to discourage employees from engaging in
these activities.
CONCLUSION OF LAW
By the acts and conduct described above, the Re-
spondent has been interfering with, restraining, and co-
ercing employees in the exercise of the rights guaran-
teed in Section 7 of the Act, and has thereby engaged
in unfair labor practices affecting commerce within the
meaning of Section 8(a)(1) and Section 2(6) and (7) of
the Act. In addition, by discharging and refusing to re-
hire Mitchell Terhaar, the Respondent has been dis-
criminating 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)(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 de-
signed to effectuate the policies of the Act. Having
found that the Respondent has violated Section 8(a)(3)
and (1) by discharging and since refusing to rehire
Mitchell Terhaar, we shall order the Respondent to
offer Terhaar 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 any
other rights or privileges previously enjoyed, and to
make him 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 Re-
tarded, 283 NLRB 1173 (1987). The Respondent shall
also be required to expunge from its files any and all
references to the unlawful discharge, and to notify
Terhaar in writing that this has been done.
ORDER
The National Labor Relations Board orders that the
Respondent, Contracting Services, Inc. d/b/a
CSI/Metro, Downers Grove, Illinois, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening employees with termination, the fil-
ing of a lawsuit against the Union, or plant closure if
they engage in protected concerted or union activities
or the Union tries to organize the employees.
(b) Discharging or refusing to rehire employees be-
cause of their union or concerted activities or to dis-
courage employees from engaging in these activities.
(c) 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
Mitchell Terhaar full reinstatement to his former job
or, if that job no longer exists, to substantially equiva-
lent position, without prejudice to his seniority or any
other rights or privileges previously enjoyed.
(b) Make Mitchell Terhaar whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against him, with interest, in the manner
set forth in the remedy section of this decision.
(c) Within 14 days from the date of this Order, ex-
punge from its files any and all references to Mitchell
Terhaar’s unlawful discharge and within 3 days there-
after notify him in writing that this has been done and
that the 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 pay-
ment records, timecards, personnel records and reports,
and all other records 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 Downers Grove, Illinois, copies of the
attached notice marked ‘‘Appendix.’’2 Copies of the
notice, on forms provided by the Regional Director for
Region 13, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Re-
spondent and maintained for 60 consecutive days in
conspicuous places including all places where notices
to employees are customarily posted. Reasonable steps
3CSI/METRO
shall be taken by the Respondent to ensure that the no-
tices are not altered, 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 facility involved in these pro-
ceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current
employees and former employees employed by the Re-
spondent at any time since August 23, 1995.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a
responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to
comply.
Dated, Washington, D.C. July 24, 1997
llllllllllllllllll
William B. Gould IV, Chairman
llllllllllllllllll
Sarah M. Fox, Member
llllllllllllllllll
John E. Higgins, Jr., 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
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT threaten employees with termination,
the filing of a lawsuit against Local 11, United Union
of Roofers, Waterproofers and Allied Trades, or plant
closure if they engage in protected concerted or union
activities or Local 11 tried to organize the employees.
WE WILL NOT discharge or refuse to rehire employ-
ees because of their union or concerted activities or to
discourage employees from engaging in these activi-
ties.
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 Mitchell Terhaar full reinstatement to
his former job or, if that job no longer exists, to sub-
stantially equivalent position, without prejudice to his
seniority or any other rights or privileges previously
enjoyed.
WE WILL make Mitchell Terhaar whole for any loss
of earnings and other benefits suffered as a result of
the discrimination against him, with interest.
WE WILL expunge from our files any and all ref-
erences to Mitchell Terhaar’s unlawful discharge and
WE WILL, within 3 days thereafter, notify him in writ-
ing that this has been done and that the discharge will
not be used against him in any way.
CONTRACTING SERVICES, INC. D/B/A
CSI/METRO