DPC Construction

National Labor Relations Board - Board Decisions

Nov 27, 2000

332 N.L.R.B. 131 (N.L.R.B. 2000)

332 NLRB No. 131
1
NOTICE: This opinion is subject to formal revision before publication in the
bound 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.
DPC Construction, Inc. and Mason Tenders District
Council of Greater New York, Laborers’
International Union of North America, AFL–
CIO. Case 2–CA–32660
November 27, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS LIEBMAN AND
HURTGEN
Upon a charge and an amended charge filed by the
Charging Party on December 16, 1999, and January 7,
2000, respectively, against DPC Construction, Inc., the
Respondent, the General Counsel of the National Labor
Relations Board issued a complaint on August 8, 2000,
alleging that the Respondent has violated Section 8(a)(1)
and (3) of the National Labor Relations Act.1 Although
properly served copies of the charge, amended charge,
and complaint, the Respondent failed to file an answer.2
On October 13, 2000, the General Counsel filed a Mo-
tion for Summary Judgment with the Board. On October
17, 2000, the Board issued an order transferring the pro-
ceeding 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

1 On May 19, 2000, the Regional Director for Region 2 approved an
informal settlement agreement entered into by the parties concerning
the allegations in the charge and amended charge. On August 8, 2000,
the Regional Director issued an order revoking approval of the informal
settlement agreement based on the Respondent’s failure, despite re-
quests from the Regional Office, to furnish any evidence of its compli-
ance with the terms of the settlement agreement.
2 The certified mail receipts for service of the complaint and the or-
der revoking approval of the informal settlement agreement were not
returned by the post office. However, neither the complaint nor the
order was returned to the Regional Office. Further, the complaint was
re-served on the Respondent by first class mail on September 22, 2000,
and was not returned to the Regional Office. The failure of the Postal
Service to return documents served by regular mail indicates actual
receipt of those documents by the Respondent. Lite Flight, Inc., 285
NLRB 649, 650 (1987).
letter dated September 5, 2000, notified the Respondent
that unless an answer were received by September 15,
2000, a Motion for Summary Judgment would be filed.3
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 New York
corporation with an office and place of business in Bay-
side, New York, has been engaged as a construction con-
tractor.4 In the 12-month period preceding the issuance
of the complaint, the Respondent purchased and received
at its Bayside, New York facility goods and materials
valued in excess of $50,000 directly from suppliers lo-
cated 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 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 following individuals held
the positions set forth opposite their respective names
and have been supervisors within the meaning of Section
2(11) of the Act and agents of the Respondent acting on
its behalf:

David Ilchert President/CEO
Anthony Rizzo Project Coordinator
Antonio J. Moura General Foreman
Richard (LNU) Foreman/Supervisor

On or about December 10, 1999, at its construction site
located at 387 to 391 Greenwich Street, New York, New
York, the Respondent, acting through its fore-
man/supervisor, Richard (LNU), warned and informed
employees that it did not hire union members, and that it
would discharge any employee who was a member of the
union.
On or about December 10, 1999, at its construction site
located at 387 to 391 Greenwich Street, New York, New
York, the Respondent, acting through its fore-

3 The letter was sent by both certified and regular mail. Although the
certified letter was returned to the Regional Office marked “un-
claimed,” failure or refusal to accept service cannot defeat the purposes
of the Act. See, e.g., Michigan Expediting Service, 282 NLRB 210 fn. 6
(1986). As noted above, the failure of the Postal Service to return
documents served by regular mail indicates actual receipt of those
documents by the Respondent. Lite Flight, Inc., supra. Furthermore,
even if no further reminder or warning of the consequences of failing to
file an answer were sent or given to the Respondent, this would not
warrant denial of the motion. See, e.g., Superior Industries, 289 NLRB
834, 835 fn. 13 (1988).
4 By order dated November 1, 2000, the Regional Director amended
the complaint to correct the description of the Respondent’s business.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2
man/supervisor, Richard (LNU), discharged employee
Hector Fuentes and failed to pay Hector Fuentes.
The Respondent engaged in this conduct because Hec-
tor Fuentes supported, joined and assisted the Union and
engaged in concerted activities, and to discourage em-
ployees from engaging in these activities.
CONCLUSION 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 (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 employee Hector Fuentes, we
shall order the Respondent to offer the discriminatee 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. 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 required to expunge from its files any and
all references to the unlawful discharge and failure to
pay, and to notify the discriminatee in writing that this
has been done.
ORDER
The National Labor Relations Board orders that the
Respondent, DPC Construction, Bayside, New York, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Warning and informing employees that it does not
hire union members and that it will discharge any em-
ployee who is a member of the union.
(b) Discharging and failing to pay employees because
of their union activities or affiliation 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 exe rcise 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
Hector Fuentes 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 Hector Fuentes whole for any loss of earn-
ings and other benefits suffered as a result of the dis-
crimination against him, in the manner set forth in the
remedy section of the decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharge and
failure to pay Hector Fuentes, and within 3 days thereaf-
ter, notify the employee in writing that this has been
done and that the discharge and failure to pay 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 Bayside, New York, copies of the attached
notice marked “Appendix.”5 Copies of the notice, on
forms provided by the Regional Director for Region 2,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current emp loyees and former employees employed
by the Respondent at any time since December 10, 1999.
(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. November 27, 2000

John C. Truesdale, Chairman

Wilma B. Liebman, Member

Peter J. Hurtgen, Member

5 If this Order is enforced by a judgment of a United St ates 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.”

DPC CONSTRUCTION, INC. 3
(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.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT warn and inform employees that we do not
hire union members and that we will discharge any em-
ployee who is a member of the union.
WE WILL NOT discharge or fail to pay employees because
of their union activities or affiliation or to discourage
employees 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 guar-
anteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer Hector Fuentes full reinstatement to his for-
mer 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 WILL make Hector Fuentes whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against him, less any 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 failure to pay and discharge of Hector Fuentes, and
WE WILL, within 3 days thereafter, notify him in writing
that this has been done and that the discharge and failure
to pay will not be used against him in any way.
DPC CONSTRUCTION, INC.