Environmental Services

National Labor Relations Board - Board Decisions

Oct 15, 1997

324 N.L.R.B. 114 (N.L.R.B. 1997)

1
324 NLRB No. 114
1 After the Respondent withdrew its answers, the Regional Director
granted the Respondent’s motion to reinstate a prior settlement in
Case 9–CA–34281–1, which had been set aside on issuance of the
consolidated complaint. The Regional Director stated that pursuant
to the reservations language in the settlement, the 8(a)(1) allegations
which were the subject of the settlement would appear in the amend-
ed complaint, but that no remedy would be sought with respect to
those allegations.
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.
Environmental Services, Inc. and Tri-State Building
and Construction Trades Council, AFL–CIO.
Case 9–CA–34607
October 15, 1997
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX AND
HIGGINS
Upon a charge filed by the Union on February 5,
1997, the General Counsel of the National Labor Rela-
tions Board issued an amended complaint on May 9,
1997, against Environmental Services, Inc., the Re-
spondent, alleging that it has violated Section 8(a)(1)
and (3) of the National Labor Relations Act. Although
the Respondent filed an answer to the amended com-
plaint, it subsequently withdrew both that answer and
a prior answer it had filed to an April 8, 1997 consoli-
dated complaint issued in Cases 9–CA–34281–1 and
9–CA–34607.1
On September 15, 1997, the General Counsel filed
a Motion for Summary Judgment with the Board. On
September 17, 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 amended
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, al-
though the Respondent initially did file answers, the
Respondent subsequently withdrew those answers.
Such a withdrawal has the same effect as a failure to
file an answer, i.e., all allegations in the amended com-
plaint 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,
has been engaged as a construction contractor in the
removal and installation of underground tanks out of
its St. Albans, West Virginia facility. During the 12-
month period preceding issuance of the amended com-
plaint, the Respondent, in conducting its operations,
provided services valued in excess of $50,000 to cus-
tomers located outside the State of West Virginia. 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 organiza-
tion within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
About August 18, 1996, the Respondent informed an
employee that the employee would never have been
hired if the Respondent had known of the employee’s
union membership. About August 20, 1996, the Re-
spondent threatened employees with legal action for
engaging in union organizing activity, told employees
that they could not engage in union organizing activity
or discuss the Union at any time on the Respondent’s
property or at any of its jobsites even on the employ-
ees’ own time, threatened to close the Respondent’s
operations if the employees were represented by the
Union, and threatened employees with loss of benefits
if employees were represented by the Union.
From about August 20 until October 24, 1996, em-
ployees Donald Huff and Jerry Cordle ceased work
and engaged in a strike against the Respondent. This
strike was caused by the Respondent’s unfair labor
practices described above. About October 24, 1996, the
Union, on behalf of Huff and Cordle, made an uncon-
ditional offer for the employees to return to their
former or substantially equivalent positions of employ-
ment, and since that date, the Respondent has failed
and refused to reinstate them to their former or sub-
stantially equivalent positions. The Respondent en-
gaged in this conduct because Huff and Cordle joined
or assisted the Union and/or because they engaged in
the conduct described above and to discourage em-
ployees from engaging in such 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 rights guaranteed
in Section 7 of the Act, and has thereby engaged in
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 As noted above, the 8(a)(1) allegations were the subject of a set-
tlement agreement in Case 9–CA–34281–1 and the General Counsel
is not seeking any remedy for those allegations. Accordingly, no
cease-and-desist provisions are included in the Order with respect to
those allegations.
3 Backpay will commence as of the date of the unconditional offer
to return to work on October 24, 1996. The 5-day grace period
which accommodates the interests of the employees in returning to
work and the employer’s need to effectuate that return in an orderly
manner, is inapplicable where, as here, the Respondent has rejected,
unduly delayed, or ignored the unconditional offer to return to work.
See Northern Wire Corp., 291 NLRB 727 fn. 6 (1988).
4 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.’’
unfair labor practices affecting commerce within the
meaning of Section 8(a)(1) and Section 2(6) and (7) of
the Act.
By failing and refusing to reinstate Huff and Cordle,
the Respondent has been discriminating in regard to
the hire or tenure or terms or conditions of employ-
ment of its employees thereby discouraging member-
ship 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.2 Specifi-
cally, having found that the Respondent has violated
Section 8(a)(3) and (1) by failing and refusing to rein-
state striking employees Donald Huff and Jerry Cordle
since about October 24, 1996, we shall order the Re-
spondent to offer them full reinstatement to their
former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to
their seniority or any other rights or privileges pre-
viously enjoyed, dismissing, if necessary, any persons
hired as replacements after the offer to return to work
was made. The strikers for whom no positions are im-
mediately available shall be put on a preferential hiring
list and shall be chosen from such list and offered rein-
statement as positions become available and before
other persons are hired for such work. The Respondent
shall also make the striking employees 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 NLRB 1173
(1987).3 The Respondent shall also be required to ex-
punge from its files any and all references to the un-
lawful failures to reinstate, and to notify the strikers
that this has been done.
ORDER
The National Labor Relations Board orders that the
Respondent, Environmental Services, Inc., St. Albans,
West Virginia, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Failing or refusing to reinstate employees be-
cause they join or assist the Union and/or because they
engage in an unfair labor practice strike or to discour-
age employees from engaging in such 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, rein-
state Donald Huff and Jerry Cordle to their former jobs
or, if those jobs no longer exist, to substantially equiv-
alent positions, without prejudice to their seniority or
any other rights or privileges previously enjoyed, dis-
missing, if necessary, any persons hired as replace-
ments by the Respondent on or after October 24, 1996.
If sufficient jobs are not available for the employees,
they shall be put on the preferential hiring list and
shall be chosen from such list and offered employment
before any other persons are hired.
(b) Make Donald Huff and Jerry Cordle whole, with
interest, for any loss of earnings and other benefits suf-
fered as a result of the discrimination against them, in
the manner set forth in the remedy section of this deci-
sion.
(c) Within 3 days from the date of this Order, re-
move from its record all references to it unlawful re-
fusal to offer reinstatement to Donald Huff and Jerry
Cordle and, within 3 days thereafter, notify them 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 St. Albans, West Virginia, copies of
the attached notice marked ‘‘Appendix.’’4 Copies of
the notice, on forms provided by the Regional Director
for Region 9, after being signed by the Respondent’s
authorized 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
3ENVIRONMENTAL SERVICES
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 February 5, 1997.
(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
attesting to the steps that the Respondent has taken to
comply.
Dated, Washington, D.C. October 15, 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 fail or refuse to reinstate employees
because they join or assist Tri-State Building and Con-
struction Trades Council, AFL–CIO and/or because
they engage in an unfair labor practice strike or to dis-
courage employees from engaging in such 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, reinstate Donald Huff and Jerry Cordle
to their former jobs, or, if those jobs no longer exist,
to substantially equivalent positions, without prejudice
to their seniority or any other rights or privileges pre-
viously enjoyed, dismissing, if necessary, any persons
we hired as replacements on or after October 24, 1996.
If sufficient jobs are not available for the employees,
we will put them on the preferential hiring list and
they shall be chosen from such list and offered em-
ployment before any other persons are hired.
WE WILL make Donald Huff and Jerry Cordle
whole, with interest, for any loss of earnings and other
benefits suffered as a result of our discrimination
against them.
WE WILL, within 3 days from the date of this Order,
remove from our records all references to the unlawful
refusal to offer reinstatement to Donald Huff and Jerry
Cordle and, within 3 days thereafter, notify them in
writing that this has been done.
ENVIRONMENTAL SERVICES, INC.