Frank E. Sims Construction Co.

National Labor Relations Board - Board Decisions

May 29, 1979

242 N.L.R.B. 607 (N.L.R.B. 1979)

FRANK E. SIMS CONSTRUCTION CO., INC.
Frank E. Sims Construction Co., Inc. and United
Mine Workers of America, Dist. 21. Case 16-CA
8032
May 29, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND MURPHY
Upon a charge filed on August 2, 1978, by United
Mine Workers of America, Dist. 21, herein called the
Union, and duly served on Frank E. Sims Construc-
tion Co., Inc., herein called Respondent, the General
Counsel of the National Labor Relations Board, by
the Regional Director for Region 16, issued a com-
plaint and notice of hearing on September 5, 1978,
against Respondent. alleging that Respondent had
engaged in and was engaging in unfair labor practices
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 Respondent granted
a wage increase in an attempt to cause employees to
reject the Union; threatened to close the mine if the
Union won the election; unlawfully interrogated an
employee; threatened to discharge an employee be-
cause of his union activities: and discharged and sub-
sequently refused to reinstate employee Allen Lee
Kinman because of his union activities.
On January 3, 1979, counsel for the General Coun-
sel filed directly with the Board a Motion for Sum-
mary Judgment based upon Respondent's failure to
file an answer as required by Section 102.20 of the
Board's Rules and Regulations, Series 8, as amended.
On January 11, 1979, Respondent filed an answer
thereto stating its reasons for not making timely an-
swer to the General Counsel's complaint above. Re-
spondent's attorney averred in its response that he
was out of the country when Region 16 contacted his
office on two occasions to ascertain the reason for his
delay in answering the complaint. Respondent's at-
torney avers further that he did not make timely an-
swer in the first instance becauie he assumed the case
had been closed by way of settlement shortly after
issuance of complaint, and that this mistake was in
good faith. Respondent also generally denies the alle-
gations in the complaint in its prayer for relief. Subse-
quently, on January 12, 1979, 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 has not filed any further re-
sponse.
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 this 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 provides in pertinent part 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 allega-
tions in the complaint, if no answer is filed, or
any allegation in the complaint not specifically
denied or explained in an answer filed, unless the
respondent shall state in the answer that he is
without knowledge, shall be deemed to be admit-
ted to be true and shall be so found by the
Board, unless good cause to the contrary is
shown.
The complaint served on Respondent specifically
stated that, unless an answer to the complaint was
filed within 10 days from the service thereof. "all of
the allegations in the complaint shall be deemed to be
admitted to be true and may be so found by the
Board." The complaint was issued September 5, 1978.
When more than 2 months had elapsed, counsel for
the General Counsel telephoned the office of Respon-
dent's attorney on December 14. 1978, concerning an
answer to the complaint. The Board agent could not
reach Respondent's counsel but left word with his
secretary: Region 16 also mailed a letter confirming
this conversation. The Regional Office again tele-
phoned Respondent's counsel on December 20, 1978.
and again sent a confirming letter stating that if no
answer were filed on or before December 27, 1978,
the General Counsel would move for default judg-
ment. By January 3, 1979, Region 16 had not re-
ceived Respondent's answer and, on that day, moved
for Summary Judgment.
On January 11, 1979, counsel filed an answer to the
complaint stating that he had not filed an answer to
the complaint within the 10-day period provided be-
cause he thought the case had been settled. Counsel
bases his belief that the case had been officially set-
242 NLRB No. 89
607
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tled upon Respondent's reinstatement of the subject
of the complaint, Allen Lee Kinman.
With respect to counsel's continuing failure to file
an answer once his firm was notified by the Regional
Office that an answer was required, counsel contends
that he was in Mexico on vacation from December
10, 1978, through January 5, 1979, and that the Re-
gion could have contacted Respondent directly while
he was out of the country. The Charging Party, in its
brief in support of the General Counsel's Motion for
Summary Judgment, argues that (I) counsel, an expe-
rienced labor lawyer, knew the procedure by which a
case is settled and knew or should have known that
this case had not been settled; (2) Kinman was rein-
stated at a substantially lower paying position; (3)
counsel employs three associate attorneys who could
have handled the case in his absence; and (4) counsel
has not served a copy of his answer of January 11,
1979, on the Charging Party in violation of Section
102.21 of the Board's Rules and Regulations.
Considering the foregoing circumstances, as well as
Respondent's failure to request an extension of time,
we do not accept Respondent's explanations as "good
cause," within the meaning of Section 102.20 of the
Board's Rules and Regulations.' Accordingly, we
grant the General Counsel's Motion for Summary
Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is, and has been at all times material
herein, a corporation duly organized under, and exist-
ing by virtue of the laws of the State of Arkansas.
Respondent is engaged in strip mining coal with
worksites located near Clarksville, Arkansas, and
Keota, Oklahoma. During the preceding 12 months, a
representative period, Respondent in the course and
conduct of its business, had gross revenue in excess of
$500,000 and purchased goods valued in excess of
$50,000 from sources directly outside the State of
Oklahoma.
We find, on the basis of the foregoing, that Respon-
dent is, and has been at all times material herein, 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 jurisdiction
herein.
See Ancorp National Services, Inc., Casco Division, 202 NLRB 513 (1973);
Aaron Convalescent Home, 194 NLRB 750 1971).
II. THE LABOR ORGANIZATION INVOLVED
United Mine Workers of America, Dist. 21, is a
labor organization within the meaning of Section 2(5)
of the Act.
III. THE UNFAIR LABOR PRACTICES
Respondent has interfered with, restrained, and co-
erced its employees in violation of Section 8(a)(1) of
the Act by the following acts and conduct: granting a
wage increase in an attempt to cause employees to
reject the Union; threatening to close the mine if the
Union were brought in; interrogating an employee
concerning union activity and the employees' desires;
and threatening an employee with discharge because
of his union activities.
Respondent, on or about July 24, 1978, discharged
and thereafter failed and refused to reinstate its em-
ployee Allen Lee Kinman in violation of Section
8(a)(3) and (1) of the Act, and it continues to refuse to
reinstate Kinman because he joined or assisted the
Union or engaged in other union activity or concerted
activities for the purpose of collective bargaining or
mutual aid and protection.
The aforesaid unfair labor practices are unfair la-
bor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with its operations
described in section I, above, have a close, intimate,
and substantial relationship to trade, traffic, and com-
merce among the several States and tend to lead to
disputes burdening and obstructing commerce and
the free flow of commerce.
V. 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 (I) of the Act, we shall
order that it cease and desist therefrom and take cer-
tain affirmative action designed to effectuate the poli-
cies of the Act.
Having found that Respondent discriminatorily
discharged Allen Lee Kinman and refused to rein-
state him to his former position, we shall order that
Respondent offer him immediate and full reinstate-
ment to his former job or, if that job no longer exists,
to a substantially equivalent position, without preju-
dice to his seniority or any other rights or privileges
previously enjoyed, and to make him whole for any
608
FRANK E. SIMS CONSTRUCTION CO., INC.
loss of earnings he may have suffered by payment to
him of money equal to the amount he normally
would have earned, absent the unlawful discharge, as
wages from the date of his discharge until he receives
a valid offer of reinstatement, with interest thereon to
be computed in the manner prescribed in F. W. Wool-
worth Company, 90 NLRB 289 (1950), and Florida
Steel Corporation, 231 NLRB 651 (1977).2
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
I. Frank E. Sims Construction Co., Inc., is an em-
ployer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. United Mine Workers of America, Dist. 21, is a
labor organization within the meaning of Section 2(5)
of the Act.
3. By discharging Allen Lee Kinman for his union
activity, Respondent has engaged in an unfair labor
practice within the meaning of Section 8(a)(3) and (1)
of the Act.
4. By unilaterally granting a wage increase, threat-
ening to close the mine if the Union came in, threat-
ening an employee with discharge because of his
union activities, and interrogating an employee con-
cerning his union activity, Respondent has interfered
with, restrained, and coerced employees in the exer-
cise of rights guaranteed in Section 7 of the Act and
thereby has engaged in and is engaging in unfair la-
bor practices within the meaning of Section 8(a)(1) 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 Rela-
tions Board hereby orders that the Respondent,
Frank E. Sims Construction Co., Inc., Fort Smith,
Arkansas, its officers, agents, successors, and assigns,
shall:
I. Cease and desist from:
(a) Granting wage increases, threatening to close
the mine if the Union comes in, interrogating employ-
ees regarding their union activities, threatening em-
ployees with discharge, and discharging employees
because of their activities on behalf of United Mine
Workers, Dist. 21.
2 See, generally. Isis Plumbing & Heatring Co., 138 NLRB 716 (1962).
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer Allen Lee Kinman immediate and full re-
instatement 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 privi-
leges previously enjoyed.
(b) Make Allen Lee Kinman whole for any loss of
earnings he may have suffered by reason of the dis-
crimination against him by payment of a sum of
money equal to the amount he normally would have
earned as wages from the date of his termination to
the date of the Respondent's offer of reinstatement in
the manner set forth in the section herein entitled
"The 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 worksites located near Clarksville,
Arkansas, and Keota, Oklahoma, copies of the at-
tached notice marked "Appendix."3 Copies of said
notice, on forms provided by the Regional Director
for Region 16, after being duly signed by Respon-
dent's representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said no-
tices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director for Region 16 in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply herewith.
I3 n the event that this Order is enforced by a Judgment ofa 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 threaten employees with plant
closure because of the Union nor will we dis-
charge or threaten to discharge employees for
union activity.
609
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT interrogate employees regarding
their union activities.
WE WILL NOT grant unilateral wage increases.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of rights guaranteed them by Section
7 of the Act.
WE WILL offer Allen Lee Kinman reinstate-
ment 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 WE
WILL make him whole for any loss of earnings he
may have suffered by reason of our discrimina-
tion against him, with interest.
FRANK E. SIMS CONSTRUCTION CO., INC.
610