Davis Abatement Systems

National Labor Relations Board - Board Decisions

Oct 10, 1997

324 N.L.R.B. 107 (N.L.R.B. 1997)

1
324 NLRB No. 107
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.
Davis Abatement Systems, Inc. and James
Streholski. Case 30–CA–12879
October 10, 1997
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX AND
HIGGINS
Upon a charge filed by James Streholski, an individ-
ual, on May 8, 1995, the General Counsel of the Na-
tional Labor Relations Board issued a complaint on
August 13, 1996, against Davis Abatement Systems,
Inc., the Respondent, alleging that it has violated Sec-
tion 8(a)(1) and (3) of the National Labor Relations
Act. Although the Respondent filed an answer on Au-
gust 22, 1996, the Respondent withdrew that answer
on August 29, 1997.
On September 9, 1997, the General Counsel filed a
Motion for Summary Judgment with the Board. On
September 10, 1997, the Board issued an order trans-
ferring 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.
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, although the Re-
spondent initially did file an answer, the Respondent
withdrew its answer to the complaint on August 29,
1997. The Respondent’s withdrawal of its answer to
the complaint has the same effect as a failure to file
an answer, i.e., all allegations in the complaint must be
considered to be true. See Maislin Transport, 274
NLRB 529 (1985).
Accordingly, in the absence of good cause being
shown otherwise, we grant the General Counsel’s Mo-
tion 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 Fond du Lac,
Wisconsin, has been engaged in the business of asbes-
tos removal and selective demolition. During the cal-
endar year ending December 31, 1995, the Respondent,
in conducting its business operations, purchased and
received products, goods, and materials at its facility in
Fond du Lac, Wisconsin, valued in excess of $50,000
directly from suppliers located outside the State of
Wisconsin. We find that the Respondent is an em-
ployer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act and that Laborers’
International Union of North America Local 1086 (the
Union) is now and has been at all material times a
labor organization within the meaning of Section 2(5)
of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The following employees of the Respondent con-
stitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the
Act:
Workers who are properly trained and have the
necessary skills, certification or license to handle
abatement of asbestos in construction as well as
the necessary skills to handle and use the proper
equipment and safeguard for same. The Employer
also recognizes and acknowledges that the Union
is the exclusive representative for all employees
of the Employer in the classification and cat-
egories of work covered by this Agreement for
the purposes of collective-bargaining as provided
by the Labor-Management Act of 1947, as
amended.
About September 20, 1994, the Respondent, an em-
ployer engaged in the building and construction indus-
try, granted recognition to the Union as the exclusive
collective-bargaining representative of the unit by en-
tering into a collective-bargaining agreement effective
from September 24, 1994, to May 31, 1996 (the 1994–
1996 agreement), without regard to whether the major-
ity status of the Union has ever been established under
the provisions of Section 9(a) of the Act. The 1994–
1996 agreement contains provisions relating to safety,
specifically that the Respondent will provide employ-
ees with protective clothing and respirators.
On February 6, 1995, Charging Party James
Streholski, while working on the jobsite in Monroe,
Wisconsin, complained to the Respondent concerning
the lack of proper respirators and clothing, insufficient
supplies of air, and other safety problems in violation
of the 1994–1996 agreement, complained to the Re-
spondent that unit work was being performed by
nonunit persons, in violation of the 1994–1996 agree-
ment, called the Union to inform it of the contract vio-
lations, and called OSHA to report the safety viola-
tions. These claims relate to the 1994–1996 agreement.
These activities, including contacting OSHA to report
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 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.’’
safety violations, constitute concerted complaints re-
garding wages, hours, and working conditions pro-
tected by the Act.
On February 8, 1995, the Respondent threatened
Streholski with discharge if he continued to contact the
Union concerning the contract violations, threatened
Streholski with discharge for contacting OSHA, and
discharged Streholski. The Respondent engaged in
these activities, because Streholski engaged in the pro-
tected, concerted activity described above, and to dis-
courage employees from engaging in these activities.
CONCLUSIONS 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.
By threatening and discharging Streholski, the Re-
spondent has been discriminating 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. Specifi-
cally, having found that the Respondent has violated
Section 8(a)(3) and (1) by discharging James
Streholski, 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, 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. Wool-
worth Co., 90 NLRB 289 (1950), with interest as pre-
scribed in New Horizons for the Retarded, 283 NLRB
1173 (1987). The Respondent shall also be required to
expunge from its files any and all references to the un-
lawful discharge, and to notify the discriminatee in
writing that this has been done.
ORDER
The National Labor Relations Board orders that the
Respondent, Davis Abatement Systems, Inc., Fond du
Lac, Wisconsin, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Threatening employees with discharge or dis-
charging them for engaging in protected, concerted ac-
tivities or to discourage employees from engaging in
these activities.
(b) In any like or related manner interfering with,
restraining, 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
James Streholski full reinstatement to his former job
or, if that job no longer exists, to a substantially equiv-
alent position, without prejudice to his seniority or any
other rights or privileges previously enjoyed.
(b) Make James Streholski whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against him 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 the un-
lawful discharge and, within 3 days thereafter, notify
the discriminatee in writing that this has been done.
(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 Fond du Lac, Wisconsin, copies of the
attached notice marked ‘‘Appendix.’’1 Copies of the
notice, on forms provided by the Regional Director for
Region 30, 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
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 May 8, 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
3DAVIS ABATEMENT SYSTEMS
attesting to the steps that the Respondent has taken to
comply.
Dated, Washington, D.C. October 10, 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 discharge or
discharge them for engaging in protected, 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, offer James Streholski full reinstate-
ment 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 pre-
viously enjoyed.
WE WILL make James Streholski whole for any loss
of earnings and other benefits suffered as a result of
the discrimination against him in the manner set forth
in a decision of the National Labor Relations Board.
WE WILL, within 14 days from the date of the
Board’s Order, expunge from our files any and all ref-
erences to the unlawful discharge and, within 3 days
thereafter, notify James Streholski in writing that this
has been done.
DAVIS ABATEMENT SYSTEMS, INC.