Electra-Cal Contractors

National Labor Relations Board - Board Decisions

Jun 23, 2003

339 N.L.R.B. 370 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 370
Electra-Cal Contractors and International Brother-
hood of Electrical Workers, Local 441, AFL–
CIO. Case 21–CA–33342
June 23, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND ACOSTA
Upon a charge filed by the Union on May 26, 1999, an
amended charge filed on September 23, 1999, and a sec-
ond amended charge filed on October 15, 1999,1 the
General Counsel of the National Labor Relations Board
issued a complaint on February 21, 2002, against Electra-
Cal Contractors, the Respondent, alleging that it has vio-
lated Section 8(a)(1) and (3) of the National Labor Rela-
tions Act. Although properly served copies of the
charge, as amended, and the complaint, the Respondent
failed to file a timely answer.
On March 22, 2002, the General Counsel filed a Mo-
tion for Summary Judgment with the Board. On April 2,
2002, 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, on April
23, 2002, filed a response to the Board’s Notice to Show
Cause and included an answer to the complaint.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Summary Judgment
Section 102.20 and of the Board’s Rules and Regula-
tions provides 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 March 13, 2002, notified the Respondent
that, unless an answer was received by March 20, 2002, a
Motion for Summary Judgment would be filed. Thereaf-
ter, the Respondent neither filed an answer to the com-
plaint nor requested an extension of time to do so.
In its response to the Board’s Notice to Show Cause,
the Respondent argues that summary judgment is not
warranted because: (1) there is no merit to the complaint
allegations; (2) the Respondent had answered the allega-

1 Although specific reference to the second amended charge was in-
advertently omitted from the complaint, the substance of that charge’s
allegations was included in the complaint. Also, a copy of the second
amended charge was submitted by the General Counsel in support of
the Motion for Summary Judgment.
tions in the unfair labor practice charges in the course of
the investigation; (3) the Respondent’s September 22 and
October 26, 1999 position statements to the Region dur-
ing the investigation of the unfair labor practices charges
effectively denied all of the complaint allegations and
might be sufficient to constitute an answer to the com-
plaint; (4) the Respondent erroneously assumed that,
based on the Charging Party Union’s March 11, 2002
letter requesting that the Region postpone the date for
hearing, the hearing would be continued and it no longer
had to file its answer by March 20, 2002; and (5) the
Respondent has filed its answer with its response to the
Notice to Show Cause, and no party has been prejudiced
by its failure to comply with the Board’s procedural re-
quirements. For the following reasons, we find no merit
to the Respondent’s arguments.
Where respondents are represented by counsel, absent
good cause, answers will not defeat a Motion for Sum-
mary Judgment. Galesburg Construction Co., 259
NLRB 722 (1981), enfd. 703 F.2d 571 (7th Cir. 1983);
see also Value Line Co., 281 NLRB 212 (1986). Nor
will ”good cause” be lightly found. For example, it is no
excuse that a timely answer was not filed because re-
spondent’s counsel was delinquent,2 extremely busy,3
unfamiliar with the Board’s documents,4 or mistakenly
believed that the Board matter related to a proceeding
before another agency.5 We likewise have found that
“good cause” was not shown where the respondent’s
excuse was that it thought that the unfair labor practice
charge had been withdrawn.6
Finally, the Board has held that statements of position
that are filed by a respondent or its counsel in the pre-
complaint investigative stage of an unfair labor practice
proceeding are insufficient to constitute answers to the
complaint. Unlimited Security, Inc., 338 NLRB 500
(2002); Wheeler Mfg. Corp., 296 NLRB 6 (1989). That
is because “[i]t is the complaint, not the charge, that spe-
cifically and formally gives notice of the matters that are
potentially at issue . . . . It is, therefore, the answer to the
complaint, not the earlier statement of position in re-
sponse to the charge, that ultimately frames the issues in
dispute, defines the scope, and thus sets the parameters
of the case.” Central States Xpress, 324 NLRB 442,
443–444 (1997). We find that the Respondent, who was
represented by counsel at all times, has failed to show
good cause for not filing a timely answer. Here, the Re-
spondent does not dispute that it received the complaint
2 Sherwood Coal Co., 252 NLRB 497 (1980).
3 American Gem Sprinkler Co., 316 NLRB 102, 103 (1995).
4 Duro Pleating, 317 NLRB 614 (1995).
5 Clean & Shine, 255 NLRB 1144 (1981).
6 International Total Services, 303 NLRB 16 (1991).
339 NLRB No. 45
ELECTRA-CAL CONTRACTORS 371
and the Region’s March 13, 2002 letter. Despite the fact
that the March 13 letter put the Respondent on notice that
summary judgment would be sought if an answer was
not filed by March 20, 2002, the Respondent did not re-
spond with its answer until after the Board’s Notice to
Show Cause issued on April 2, 2002. And although the
Respondent filed position statements in September and
October 1999 in response to the unfair labor practice
charge, those statements are insufficient to constitute an
answer. See Bricklayers Local 31, 309 NLRB 970
(1992), enfd. 992 F.2d 1217 (6th Cir. 1993). Finally, we
believe that the Respondent could not reasonably infer,
from the Charging Party Union’s March 11 letter re-
questing postponement of the hearing that: (1) the Re-
gion would necessarily grant that request; and (2) a post-
ponement would obviate the Board’s procedural re-
quirements that it either file a timely answer to or request
an extension of time for doing so. See Sections 102.20
and 102.22 of the Board’s Rules and Regulations. Ac-
cordingly, we grant the General Counsel’s Motion for
Summary Judgment.
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a California
corporation, with an office and place of business located
in Pocoima, California, has been engaged in the business
of electrical contracting. During the 12-month period
ending September 6, 1999, the Respondent purchased
and received goods valued in excess of $50,000 directly
from points located outside the State of California. 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 of the Respondent within the
meaning of Section 2(11) of the Act and agents of the
Respondent within the meaning of Section 2(13) of the
Act.

Eugene Vanderford President
Daningo Grijalva Foreman

On about April 1 and 21, 1999, the Respondent termi-
nated employees Clint Scrivner and Mike Kaspar, re-
spectively, because they had joined, supported, or as-
sisted the Union and engaged in concerted activities, and
in order to discourage employees from engaging in such
activities. On about April 19, 1999, the Respondent,
through its president, Vanderford, in a telephone conver-
sation, interrogated an employee applicant about that
applicant’s union affiliation.
On about April 1 and 21, 1999, the Respondent, by its
foreman, Grijalva, informed employees that they were
being terminated for their union affiliation. About April
9, 16, and 21, 1999, the Respondent, by Grijalva, in-
formed employees that another employee had been ter-
minated for his union affiliation. On April 9, 13, and 21,
1999, the Respondent, by Grijalva, interrogated employ-
ees regarding their union affiliation. About April 21,
1999, the Respondent, by Grijalva, threatened an em-
ployee with termination in retaliation for the employee’s
union activities and affiliation.
CONCLUSIONS OF LAW
1. By terminating or otherwise discriminating against
employees Clint Scrivner and Mike Kaspar because of
their union activities, the Respondent has violated Sec-
tion 8(a)(3) and (1) of the Act.
2. By interrogating employees regarding their union
activities, by threatening employees with termination in
retaliation for their union activities, by informing em-
ployees that they were being terminated for their union
affiliation, and by informing employees that another em-
ployee had been terminated for his union affiliation, the
Respondent has interfered with, restrained, and coerced
employees in the exercise of rights guaranteed them by
Section 7 of the Act.
3. By the foregoing conduct, the Respondent has en-
gaged in unfair labor practices affecting commerce
within the meaning of Section 8(a)(1) and (3) and Sec-
tion 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)(1)
and (3) by discharging Clint Scrivner and Mike Kaspar,
we shall order the Respondent to offer them full rein-
statement to the positions they had or, if those positions
no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights or
privileges previously enjoyed. Further, the Respondent
shall make them whole for any loss of earnings and other
benefits suffered as a result of the discrimination against
them. 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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 372
NLRB 1173 (1987).7 The Respondent shall also be re-
quired to remove from its files any and all reference to
the unlawful discharge of these individuals, and to notify
them in writing that this has been done and that the dis-
charges will not be used against them in any way.
ORDER
The National Labor Relations Board orders that the
Respondent, Electra-Cal Contractors, Pacoima, Califor-
nia, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Terminating or otherwise discriminating against
employees because they engaged in union or other pro-
tected concerted activities.
(b) Interrogating employees about their union activities
or affiliation.
(c) Threatening employees with termination in retalia-
tion for the employees’ union activities or affiliation.
(d) Informing employees that they were being termi-
nated for their union affiliation.
(e) Informing employees that another employee had
been terminated for his union affiliation.
(f) 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
Clint Scrivner and Mike Kaspar immediate and full rein-
statement to the same positions they had or, if those posi-
tions no longer exist, to substantially equivalent positions
without prejudice to their seniority or any other rights or
privileges previously enjoyed.
(b) Make Clint Scrivner and Mike Kaspar whole for
any loss of earnings and other benefits suffered as a re-
sult of the discrimination against them, with interest, in
the manner set forth in the remedy section of this deci-
sion.
(c) Within 14 days from the date of this Order, remove
from its files any and all references to the unlawful ter-
mination of Clint Scrivner and Mike Kaspar and, within
3 days thereafter, notify them in writing that this has

7 In the complaint, the General Counsel seeks an order requiring the
Respondent to reimburse employees Scrivner and Kaspar for any extra
Federal and/or State income taxes that would or may result from the
lump sum payment of a monetary award. We decline to order this
relief at this time. We believe that the remedial question raised by the
General Counsel should be resolved after full briefing by the affected
parties. See Kloepfers Floor Covering, 330 NLRB 811 fn. 1 (2000).
Because there has been no such briefing in this no answer case, and
because this relief would require a change in Board law, see, e.g., Hen-
drickson Bros., 272 NLRB 438, 440 (1985), enfd. 762 F.2d 990 (2d
Cir. 1985), we decline to pass on the issue of whether the relief would
have been granted if the matter had been fully briefed.
been done, and that the unlawful conduct will not be
used against them in any way.
(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, time-
cards, personnel records and reports, and all other
records including an electronic copy of such records if
stored in electronic form necessary to analyze the amount
of backpay due under the terms of this Order.
(e) With 14 days after service by the Region, post at its
facility in Pacoima, California, copies of the attached
notice marked “Appendix.”8 Copies of the notice, on
forms provided by the Regional Director for Region 21,
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 expense, a copy of the notice to all
current employees and former employees employed by
the Respondent at any time since April 1, 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.
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 Federal labor law and has ordered us to post and obey
this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
8 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 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.”
ELECTRA-CAL CONTRACTORS 373
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT terminate or otherwise discriminate
against employees because they engaged in union or
other protected concerted activities.
WE WILL NOT interrogate employees about their union
activities or affiliation.
WE WILL NOT threaten employees with termination in
retaliation for their union activities or affiliation.
WE WILL NOT inform employees that they were being
terminated for their union affiliation.
WE WILL NOT inform employees that another employee
had been terminated for his union affiliation.
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 Clint Scrivner and Mike Kaspar imme-
diate reinstatement to the same positions they had or, if
those positions no longer exist, to substantially equiva-
lent positions.
WE WILL make Clint Scrivner and Mike Kaspar whole
for any loss of earnings and other benefits suffered as a
result of the discrimination against them, with interest.
WE WILL remove from our files any and all references
to the unlawful terminations of Clint Scrivner and Mike
Kaspar, and WE WILL, within 3 days thereafter, notify
them in writing that this has been done, and that the
unlawful conduct will not be used against them in any
way.
ELECTRA-CAL CONTRACTORS