Harthan Construction Co.

National Labor Relations Board - Board Decisions

Jun 23, 1977

230 N.L.R.B. 389 (N.L.R.B. 1977)

HARTHAN CONSTRUCTION COMPANY
Harthan Construction Company and Ernest Ransom.
Case 6-CA-9821
June 23, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
WALTHER
Upon a charge filed on December 20, 1976, and an
amended charge filed on February 22, 1977, by
Ernest Ransom, an individual, herein called the
Charging Party, and duly served on Harthan Con-
struction Company,' herein called Respondent, the
General Counsel of the National Labor Relations
Board, by the Regional Director for Region 6, issued
a complaint on February 23, 1977, against Respon-
dent, alleging that Respondent had engaged in and
was engaging in unfair labor practices affecting
commerce within the meaning of Section 8(aX3) and
(1) and Section 2(6) and (7) of the National Labor
Relations Act, as amended. Copies of the charge,
complaint, and notice of hearing before an Adminis-
trative Law Judge were duly served on the parties to
this proceeding. Respondent failed to file an answer
to the complaint.
On March 21, 1977, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. The Board subsequently 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 failed to file a response to
the Notice To Show Cause and, therefore, the
allegations of the Motion for Summary Judgment
stand uncontroverted.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority 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, Series 8, as amended, provides 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 complaint,
unless the respondent is without knowledge, in
which case the respondent shall so state, such
statement operating as a denial. All allegations 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
admitted to be true and shall be so found by the
Board, unless good cause to the contrary is
shown.
The complaint and notice of hearing served on the
Respondent specifically states that unless an answer
to the complaint is filed by Respondent within 10
days of service thereof "all of the allegations in the
complaint shall be deemed to be admitted by it to be
true and may be so found by the Board." Further,
according to the Motion for Summary Judgment, on
March 8, 1977, counsel for the General Counsel
mailed to Respondent by registered mail a letter
notifying it of its failure to file an answer and
advising Respondent that unless an answer was filed
by March 11, 1977, counsel for the General Counsel
would move for Summary Judgment. No reply had
been received by March 21, 1977, the date of this
Motion for Summary Judgment.
Accordingly, under the rule set forth above, no
good cause having been shown for failure to file an
answer, the averments of the complaint are deemed
admitted and are found to be true and we shall grant
the 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, with its principal office located in
Girard, Pennsylvania, is engaged in the construction
and excavation business. During the past 12 months,
it performed services pursuant to contracts valued in
excess of $50,000 outside the Commonwealth of
Pennsylvania.
We find, on the basis of the foregoing, that
Respondent is 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.
1. THE LABOR ORGANIZATION INVOLVED
International Union of Operating Engineers, Local
Union 18, AFL-CIO, herein called the Union, is a
labor organization within the meaning of Section 2(5)
of the Act.
The amended charge was served concurrently with the complaint.
230 NLRB No. 47
389
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
Respondent, on or about December 8, 1976,
terminated the employment of the Charging Party
and has failed and refused, and continues to fail and
refuse, to reinstate him because of the Charging
Party's lack of membership in the Union, notwith-
standing the fact that the Union made no request for
the termination of the Charging Party and that a
union-security clause in the collective-bargaining
agreement between Respondent and the Union could
not have been invoked at the time of the termination.
We find, accordingly, that by the aforesaid conduct
Respondent discriminated in regard to the terms and
conditions of employment of its employee, thereby
encouraging membership in a labor organization and
that by such conduct Respondent has engaged in,
and is engaging in, unfair labor practices within the
meaning of Section 8(a)(3) and (1) 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 activities
described in section I, above, have a close, intimate,
and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead
to labor disputes burdening and obstructing com-
merce 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
meaning of Section 8(a)(3) and (1) of the Act, we
shall order that it cease and desist therefrom and take
certain affirmative action designed to effectuate the
policies of the Act.
Since we have found that Respondent discrimina-
torily discharged its employee, Ernest Ransom, and
discriminatorily failed and refused to reinstate him,
we shall order that Respondent offer him immediate
and full reinstatement to his former job or, if that job
no longer exists, to a substantially equivalent
position, without prejudice to his seniority and other
rights and privileges, and make him whole for any
loss of earnings he may have suffered by reason of
such discrimination, by payment of a sum of money
equal to that which he normally would have earned
as wages from the date of discharge to the date of
said offer of reinstatement, less his net earnings
during such period, with backpay computed on a
quarterly basis in the manner established by the
Board in F. W. Woolworth Company, 90 NLRB 289,
294 (1950), and with interest thereon as prescribed by
the Board in Isis Plumbing & Heating Co., 138 NLRB
716 (1962).
Since the unfair labor practices committed by
Respondent were of a character which go to the very
heart of the Act, we shall order Respondent to cease
and desist from infringing in any other manner upon
the rights of employees guaranteed by Section 7 of
the Act.
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Respondent, Harthan Construction Company,
is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. International Union of Operating Engineers,
Local Union 18, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. By the acts and conduct described in section
III, above, Respondent has interfered with, re-
strained, and coerced employees in the exercise of
rights guaranteed in Section 7 of the Act and thereby
has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(aX3) and
(1) of the Act.
4. 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
Relations Board hereby orders that the Respondent,
Harthan Construction Company, Girard, Pennsylva-
nia, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Encouraging membership in, or activities on
behalf of, International Union of Operating Engi-
neers, Local Union 18, AFL-CIO, or any other labor
organization, by discharging or otherwise discrimi-
nating in regard to the hire and tenure of employ-
ment or any term or condition of employment of any
of its employees.
(b) In any other manner interfering with, restrain-
ing, or coercing its employees in the exercise of rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Offer to Ernest Ransom immediate and full
reinstatement to his former job or, if that job no
longer exists, to substantially equivalent employ-
ment, without prejudice to his seniority and other
rights and privileges.
(b) Make whole Ernest Ransom for any loss of pay
he may have suffered by reason of the discrimination
390
HARTHAN CONSTRUCTION COMPANY
against him by payment to him 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 Respondent's offer of reinstatement, with interest,
in the manner set forth in the section herein entitled
"The Remedy."
(c) Post at its Girard, Pennsylvania, facility copies
of the attached notice marked "Appendix." 2 Copies
of said notice, on forms provided by the Regional
Director for Region 6, after being duly signed by
Respondent's representative, shall be posted by
Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereaf-
ter, in conspicuous places, including all places where
notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered
by any other material.
(c) Notify the Regional Director for Region 6, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
2 In the event that 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 Enforci'ig 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 encourage membership in, or
activities on behalf of, International Union of
Operating Engineers, Local Union 18, AFL-CIO,
or in any other labor organization, by discharging
employees, or otherwise discriminating in regard
to hire and tenure of employment or any term or
condition of employment of any of our employ-
ees.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of their rights to self-organization, to form, join,
or assist labor organizations, to bargain collec-
tively through representatives of their own choos-
ing, to engage in other concerted activities for the
purpose of collective bargaining or other mutual
aid or protection, or to refrain from any or all
such activities.
WE WILL offer Ernest Ransom full reinstate-
ment to his former job or, if that job no longer
exists, to a substantially equivalent position,
without prejudice to his seniority or other rights
and privileges and wE WILL make him whole for
any loss of pay suffered as a result of the
discrimination against him.
HARTHAN CONSTRUCTION
COMPANY
391