Dawson Masonry, Inc.

National Labor Relations Board - Board Decisions

Jul 28, 1975

219 N.L.R.B. 566 (N.L.R.B. 1975)

566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dawson Masonry, Inc. and Orville L. Lamar. Case
10-CA-11126
July 28, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS JENKINS
AND KENNEDY
Upon a charge filed on February 24, 1975, by Or-
ville L. Lamar, herein called the Charging Party, and
duly served on Dawson Masonry, Inc., herein called
the Respondent, the General Counsel of the National
Labor Relations Board, by the Regional Director for
Region 10, issued a complaint on April 8, 1975,
against Respondent, alleging that Respondent had
engaged in and was engaging in unfair labor practic-
es affecting commerce within the meaning of Section
8(a)(3) and (1) and Section 2(6) and (7) of the Na-
tional Labor Relations Act, as amended. Copies of
the charge, complaint, and notice of hearing before
an Administrative Law Judge were duly served on
the parties to this proceeding.
With respect to the unfair labor practices, the com-
plaint alleges in substance that on or about January
15, 1975, Respondent discharged its employee, Or-
ville L. Lamar, and thereafter failed and refused to
recall him, because of his membership in, and activi-
ties on behalf of, Bricklayers, Masons and Tileset-
ters, Local Union No. 8 of Alabama, and because he
engaged in concerted activities with other employees
for the purpose of collective bargaining and other
mutual aid and protection. The Respondent failed to
file and answer to the complaint.
On May 16, 1975, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment. Subsequently, on May 27, 1975, the Board
issued an order transferring the proceeding to the
Board and a Notice To Show Cause why the General
Counsel's Motion for Summary Judgment should not
be granted. Respondent failed to file a response to
Notice To Show Cause.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in the proceeding to a three-member panel.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
Section 102.20 of the Board's Rules and Regula-
tions, Series 8, as amended, provides as follows:
The respondent shall, within 10 days from the
service of the complaint, file an answer thereto.
The respondent shall specifically admit, deny, or
explain each of the facts alleged in the com-
plaint, unless the respondent is without knowl-
edge, in which case the respondent shall so state,
such statement operating as a denial. All the
allegations in the complaint not specifically de-
nied or explained in an answer filed, unless the
respondent shall state in the answer that he is
without knowledge, shall be deemed to be ad-
mitted to be true and shall be so found by the
Board, unless good cause to the contrary is
shown.
The complaint and notice of hearing duly served
on the Respondent I specifically states that unless an
answer to the complaint is filed by the Respondent
within 10 days of service thereto "all of the allega-
tions in the complaint shall be deemed to be admit-
ted to be true and may be so found by the Board."
Counsel for the General Counsel alleges in the
Motion for Summary Judgment that on May 7, 1975,
Respondent's president was contacted by telephone
concerning the filing of an answer to the complaint.
A letter was sent to Respondent's president on May
9, 1975, advising him that an answer had not yet
been received and that unless an answer was received
by an extended filing date, the close of business May
13, 1975, a motion for summary judgment would be
filed. A copy of the May 9, 1975, letter is attached to
the Motion for Summary Judgment as an exhibit.
Counsel for the General Counsel further alleges that
when no answer was received by May 14, 1975,
Respondent's president was again contacted by tele-
phone to file an answer to the complaint. At that
time counsel for the General Counsel was informed
that an attorney had been retained and that the
Charging Party would be contacted in order to settle
the matter; however, when the named attorney was
contacted he stated that he had not been retained to
act in this matter.
As noted, Respondent did not file a response to
the Notice to Show Cause. It thus appears from the
uncontroverted allegations of the Motion for Sum-
mary Judgment that Respondent was informed of
the action against it and, despite repeated requests to
file an answer and a liberal extension of time in
which to do so, Respondent failed to file an answer
to the complaint. No good cause to the contrary hav-
ing been shown for the failure to file an answer in
accordance with the rule set forth above, the allega-
tions of the complaint are deemed to be admitted
and are found to be true. We shall, accordingly,
grant the Motion for Summary Judgment.
i Attached as an exhibit to the Motion for Summary Judgment is the
registered receipt for service of the complaint signed by Charles Dawson,
president of Respondent
DAWSON MASONRY, INC.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Dawson Masonry, Inc., at all times material here-
in, has been an Alabama corporation, with an office
and place of business located at Sheffield, Alabama,
where it is engaged in masonry subcontracting. Dur-
ing the past calendar year, a representative period,
Dawson Masonry, Inc., performed services valued in
excess of $50,000 for employers located within the
State of Alabama, who each performed services dur-
ing the past calendar year valued in excess of $50,000
directly for customers located outside the State of
Alabama.
We find, on the basis of the foregoing, that Re-
spondent is , and has been at all times material here-
in, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and that
it will effectuate the policies of the Act to assert juris-
diction herein.
11. THE LABOR ORGANIZATION INVOLVED
Bricklayers , Masons and Tilesetters, Local Union
No. 8 of Alabama, is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE CHARGING PARTY
Orville L. Lamar is an employee within the mean-
ing of Section 2(3) of the Act.
IV. THE UNFAIR LABOR PRACTICES
On or about January 15, 1975, Respondent dis-
charged and thereafter failed and refused to recall its
employee, Orville L. Lamar, because of his member-
ship in, and activities on behalf of, Bricklayers, Ma-
sons and Tilesetters, Local Union No. 8 of Alabama,
and because he engaged in concerted activities with
other employees for the purpose of collective bar-
gaining and other mutual aid and protection.
Accordingly, we find that, by the aforesaid con-
duct as set forth above, Respondent has interfered
with, restrained, and coerced its employee in the ex-
ercise of the rights guaranteed him under Section 7 of
the Act, and has discriminated in regard to his terms
and conditions of employment, and by such conduct
Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(3)
of the Act.
567
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section
IV, above, occurring in connection with its opera-
tions described in section I, above, have a close, inti-
mate, and substantial relationship to trade, traffic,
and commerce among the several States and tend to
lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
VI. THE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the mean-
ing of Section 8(a)(3) and (1) of the Act, we shall
order that it cease and desist therefrom and take cer-
tain affirmative action designed to effectuate the pol-
icies of the Act.
We have found that Respondent committed unfair
labor practices by interfering with the rights guaran-
teed employees by Section 7 of the Act, and we shall
order it to cease and desist therefrom in any other
manner.
We have found that Respondent discriminatorily
discharged and failed and refused to recall its em-
ployee, Orville L. Lamar, and we shall order that Or-
ville L. Lamar be reinstated or offered reinstatement
to his former position or, if such position no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or other rights and privi-
leges. We shall also order that Respondent make Or-
ville L. Lamar whole for any loss of earnings suffered
because of the discrimination against him. Backpay
shall be based on the earnings which he normally
would have received from the date of his discharge to
the date of his recall or offer of recall, less any net
interim earnings, and shall be computed on the basis
set forth in F. W. Woolworth Company, 90 NLRB
289 (1950), and Isis Plumbing & Heating Co., 138
NLRB 716 (1962).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Dawson Masonry, Inc., is an employer engaged
in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Bricklayers, Masons and Tilesetters, Local
Union No. 8 of Alabama, is a labor organization
within the meaning of Section 2(5) of the Act.
3. Orville L. Lamar is an employee within the
meaning of Section 2(3) of the Act.
4. By the acts described in section IV, above, Re-
568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent has interfered with, restrained, coerced,
and discriminated against and is interfering with, re-
straining, coercing, and discriminating against em-
ployees in the exercise of the rights guaranteed to
them in Section 7 of the Act, and thereby has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) and (3) of the
Act.
5. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that Respondent Daw-
son Masonry, Inc., Sheffield, Alabama, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Bricklayers, Ma-
sons and Tilesetters, Local Union No. 8 of Alabama,
or any other labor organization, by discriminatorily
discharging or terminating employees and failing or
refusing to reinstate them, or by otherwise discrimi-
nating in regard to the hire or tenure of employees or
any term or condition of their employment.
(b) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Offer immediate and full reinstatement to em-
ployee Orville L. Lamar to his former position or, if
that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or other
rights and privileges.
(b) Make whole employee Orville L. Lamar for
any loss of pay he suffered as a result of the discrimi-
nation against him in the manner set forth in the
section of this Decision entitled "Remedy."
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(d) Post at its Sheffield, Alabama, place of busi-
ness copies of the attached notice marked "Appen-
dix." 2 Copies of said notice, on forms provided by
the Regional Director for Region 10, after being duly
signed by Respondent's representative, shall be post-
ed by Respondent immediately upon receipt thereof,
and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director for Region 10, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
2 In the event that 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"
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in Brick-
layers, Masons and Tilesetters, Local Union No.
8 of Alabama, or any other labor organization,
by discriminatorily discharging or terminating
and failing or refusing to reinstate them, or by
otherwise discriminating in regard to the hire or
tenure of our employees or any term or condi-
tion of their employment.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of the rights guaranteed them in Section
7 of the Act.
WE WILL offer immediate and full reinstate-
ment to employee Orville L. Lamar to his former
position or, if that job no longer exists, to a sub-
stantially equivalent position, without prejudice
to his seniority or other rights and privileges.
WE WILL make whole employee Orville L. La-
mar for any loss of pay he suffered as a result of
the discrimination against him in the manner set
forth in the section of this Decision entitled
"Remedy."
DAWSON MASONRY, INC.