Diamond Dismantling, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1999

328 N.L.R.B. 892 (N.L.R.B. 1999)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 892
Diamond Dismantling, Inc. and Robert E. Herron.
Case 7–CA–41760
June 30, 1999
DECISION AND ORDER
BY MEMBERS FOX, LIEBMAN, AND HURTGEN
Upon a charge filed by Robert E. Herron, the Charging
Party, on February 12, 1999, the General Counsel of the
National Labor Relations Board issued a complaint on
April 16, 1999, against Diamond Dismantling, Inc., 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 June 10, 1999, the General Counsel filed a Motion
for Summary Judgment with the Board. On June 11,
1999, the Board issued an order transferring the proceed-
ing 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
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 May 5, 1999, notified the Respondent that
unless an answer were received by May 19, 1999, a Mo-
tion for Default Judgment would be filed.
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 Detroit, Michigan,
has been engaged as a demolition contractor.
During the calendar year ending December 31, 1998,
the Respondent, in conducting its business operations
described above, provided services valued in excess of
$50,000 to Daimler Chrysler Corporation, an enterprise
directly engaged in interstate commerce.
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 Local 334, Laborers’ International
Union of North America, AFL–CIO (the Union), is a
labor organization within the meaning of Section 2(5) of
the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
About September 1, October 1, and November 2,
1998, the Respondent, through its representative Jessie
Prior, informed the Charging Party that the Respondent
would decide at what time he could join the Union.
About January 22, 1999, the Respondent discharged its
employee Robert E. Herron because Herron had joined
the Union, engaged in union activities, and to discourage
employees from engaging in union and other concerted
activities.
CONCLUSIONS 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 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 Robert E. Herron, the Respon-
dent has been discriminating in regard to the hire or ten-
ure or terms and conditions of employment of its em-
ployees, thereby discouraging membership in a labor
organization, and has thereby engaged in unfair labor
practices affecting commerce within the meaning of Sec-
tion 8(a)(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)(3)
and (1) by discharging Robert E. Herron, we shall order
the Respondent to offer him full reinstatement to his
former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to his senior-
ity 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 Retarded, 283
NLRB 1173 (1987). The Respondent shall also be re-
quired to expunge from its files any and all references to
the unlawful discharge, and to notify Robert E. Herron in
writing that this has been done.
ORDER
The National Labor Relations Board orders that the
Respondent, Diamond Dismantling, Inc., Detroit, Michi-
gan, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Informing employees that the Respondent would
decide when they could join the Union.
328 NLRB No. 123
DIAMOND DISMANTLING, INC. 893
(b) Discharging employees because of their union ac-
tivities or to discourage employees from engaging in
those 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
Robert E. Herron 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 Robert E. Herron whole for any loss of earn-
ings and other benefits suffered as a result of the dis-
crimination 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, remove
from its files any reference to the unlawful discharge of
Robert E. Herron, and within 3 days thereafter 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 payment re-
cords, 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 Detroit, Michigan, copies of the attached
notice marked “Appendix.”1 Copies of the notice, on
forms provided by the Regional Director for Region 7,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent immediately
upon receipt 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

1 If this Order is enforced by a judgment of the 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.”
proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Re-
spondent shall duplicate 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 September 1, 1998.
(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.
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 inform employees that we will decide
when they can join the Union.
WE WILL NOT discharge employees because of their
union activities, and to discourage employees from en-
gaging in those and other concerted 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 Robert E. Herron full reinstatement to his
former job or, if that position 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 Robert E. Herron whole for any loss of
earnings and other benefits resulting from his discharge,
less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharge of Robert E. Herron and WE WILL, within 3
days thereafter, notify him in writing that this has been
done and that the discharge will not be used against him
in any way.
DIAMOND DISMANTLING, INC.