Joseph J. Deflore

National Labor Relations Board - Board Decisions

Jan 16, 1980

247 N.L.R.B. 328 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kirila Contractors, Inc. and Joseph J. Defiore, d/b/a
Joseph J. Defiore, Builders and United Counties
Carpenters District Council, United Brotherhood of
Carpenters and Joiners of America, AFL-CIO.
Case 8-CA-12973
January 16, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
Upon a charge and an amended charge filed on July
6 and 11, 1979,' respectively, by United Counties
Carpenters District Council, United Brotherhood of
Carpenters and Joiners of America, AFL-CIO, herein
called the Union, and duly served on Kirila Contrac-
tors, Inc., herein called Respondent Kirila, and on
Joseph J. DeFiore, d/b/a Joseph J. DeFiore, Builders,
herein called Respondent DeFiore, and herein collec-
tively called Respondents, the General Counsel of the
National Labor Relations Board, by the Regional
Director for Region 8, issued a complaint and notice
of hearing on August 21, against Respondent's,
alleging that Respondents had engaged in and were
engaging in unfair labor practices affecting commerce
within the meaning of Section 8(a)(l) and (3) and
Section 2(6) and (7) of the National Labor Relations
Act, as amended. Copies of the charges, complaint,
and notice of hearing before an administrative law
judge were duly served on the parties to this proceed-
ing.
With respect to the unfair labor practices, the
complaint, which was issued on August 21, alleges in
substance that on March 21 and 22 Respondent Kirila
directed, instructed, or ordered Respondent DeFiore,
with whom it had business dealings, to lay off Richard
Hoffman, an employee of Respondent DeFiore, and to
terminate the employment of Frank Sarisky, Galen
Rice, and Richard Freeburg, also employees of Re-
spondent DeFiore, because the four employees had, or
Respondents believed they had, joined or assisted the
Union or engaged in protected concerted activities or,
in the case of Hoffman, held the position of union
steward. The complaint also alleges that on March 21
and 22 Respondent DeFiore unlawfully (I) laid off
Hoffman until March 27 because he had joined,
assisted, or favored the Union, had become a union
member, had engaged in other protected concerted
activities, or had held the position of union steward;
(2) terminated the employment of, and has failed,
refused, and continues to refuse to reinstate, its
employees Sarisky, Rice, and Freeburg because they
' All dates herein refer to 1979 unless otherwise specified.
had, or Respondent DeFiore believed they had, joined
or assisted the Union or had engaged in protected or
concerted activities; and (3) threatened employees that
it would acquire nonunion employees if the employees
insisted on having a union steward present on a
jobsite. The complaint alleges that Respondents violat-
ed Section 8(a)(l) and (3) of the Act by engaging in
the aforesaid acts.
On September 24, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment and a supporting brief alleging that Respon-
dents had failed to file answers as required by Sections
102.20 and 102.21 of the Board's Rules and Regula-
tions, Series 8, as amended, and moved that the
allegations of the complaint be deemed true. On
September 28, Respondent DeFiore, without stating
its reasons for not filing a timely answer, filed with the
Regional Director for Region 8 an untimely answer to
the complaint admitting in part, and denying in part,
the allegations of the complaint. Subsequently, on
October 1, the Board issued an order transferring the
proceeding to the Board and Notice To Show Cause
why the General Counsel's Motion for Summary
Judgment should not be granted. On October 16, the
General Counsel filed a supplemental memorandum in
support of Motion for Summary Judgment. Subse-
quently, Respondent DeFiore filed with the Board a
"Defense-Alternative Motion To Dismiss or for Sum-
mary Judgment" together with a supporting affidavit
alleging that the Board lacked jurisdiction over it. On
November 1, General Counsel filed, in response to
Respondent's defense, a second supplemental memo-
randum in support of his Motion for Summary
Judgment.
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
247 NLRB No. 63
328
JOSEPH J. DEFIORE, BUILDERS
allegation in the complaint not specifically denied
or explained in an answer filed, unless the
respondent shall state in the answer hat 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 and notice of hearing, dated August
21, was served on Respondents and specifically stated
that unless an answer to the complaint was filed
within 10 days from the service thereof "all the
allegations in said complaint shall be deemed to be
true and may be so found by the Board." Respondents
received copies of the complaint by registered mail on
August 22. On September 3, after the time for filing
the answer had expired, Region 8 informed Respon-
dents by letter that unless it received answers to the
complaint by September 12 a motion for summary
judgment would be filed. Respondent DeFiore failed
to file an answer within the time specified and
Respondent Kirila responded by a letter dated Sep-
tember 7 wherein it asserted that it was unaware of
any charges issued against it and suggested that the
Regional Office contact Respondent DeFiore. On
September 12, Region 8 sent Respondent Kirila copies
of the charges, complaint, and the return receipt cards
signed by Respondent Kirila's agent acknowledging
receipt of the initial mailings of those documents, and
in an enclosed letter stated that in light of Respondent
Kirila's confusion it had until close of business
September 19 to file an answer to the complaint or else
a motion for summary judgment would be filed with
the Board. The Region also contacted Respondent
DeFiore by letter dated September 11, wherein it
noted Respondent DeFiore's failure to respond to the
Region's September 3 letter, enclosed another copy of
the complaint "in order to avoid any possible confu-
sion," and set September 19 as the deadline for receipt
of an answer prior to filing a motion for summary
judgment. On September 14, Region 8 again notified
Respondent DeFiore that an answer was due in the
Regional Office by close of business September 19. By
September 20, Region 8 had not received an answer to
the complaint from either Respondent, and on that
day moved for summary judgment.
On September 28, Respondent DeFiore filed an
untimely answer, but has not offered an explanation
for failing to file an answer within the twice-extended
deadline. Respondent Kirila has not filed an answer.'
' In a letter to Region 8, dated September 14, Respondent Kirila's president
wrote:
In regard to your letter dated September 11, 1979, received September
12, 1979, pertaining to charges against us .... I have had no oral
conversation with anyone on this case. Furthermore, I am not familiar
with the hiring or termination of anyone on any project. I suggest you
review your records in the above mentioned case. If you have any further
question please feel free to contact our office.
On October 1, the Board ordered the proceeding
transferred to it and issued a Notice To Show Cause
why the General Counsel's Motion for Summary
Judgment should not be granted. On October 10,
General Counsel filed a supplemental memorandum in
support of its motion, requesting that its motion be
granted because (1) Respondent DeFiore failed to
submit a timely answer or explain adequately his
failure to file a timely answer as required by Sections
102.20 and 102.21 of the Board's Rules and Regula-
tions, and (2) Respondent Kirila had not filed any
answer. On October 24, Respondent DeFiore respond-
ed to the Board's Notice To Show Cause through its
"Defense-Alternative Motion To Dismiss or For
Summary Judgment" and a supporting affidavit claim-
ing that the Board lacks jurisdiction over it because its
operation failed to meet the Board's discretionary
jurisdictional standard "[a]t the time the unfair labor
practice . . . was allegedly committed . . . for the
year 1979."
We find completely without merit Respondent
DeFiore's jurisdictional defense which, in fact, does
not effectively deny the jurisdictional allegation in the
complaint inasmuch as the complaint predicates Re-
spondent DeFiore's jurisdictional flow on an annual
basis. Based on the foregoing facts, all of which stand
uncontroverted, and particularly because Respondent
DeFiore not only failed to request an extension of
filing time but then ignored the Region's offered
extension of time, we find that Respondent DeFiore
has not presented "good cause" under Section 102.20
of the Board's Rules and Regulations for its failure to
file a timely answer. Accordingly, we reject Respon-
dent DeFiore's belated attempts to file an answer. As
noted supra, Respondent Kirila has not filed an
answer. In view of the foregoing, the allegations of the
complaint are deemed to be admitted to be true.' We
shall therefore grant the General Counsel's Motion for
Summary Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent DeFiore is a sole proprietorship with a
facility located at Youngstown, Ohio, where he is
engaged in performing carpentry construction on
This letter, in response to Region 8's September II letter, does not
acknowledge the existence of the complaint, does not specifically admit, deny,
or explain each of the facts alleged in the complaint as required by the Board's
Rules and Regulations, and does not purport to be and is not an answer.
' Frank E. Sims Construction Co., Inc.. 242 NLRB 607 (1979): Robert
Brandis and John Brandis, a partnership d/b/a Brandis Aircraft. 195 NLRB
711 (1972); and Aaron Convalescent Home. 194 NLRB 750 (1971).
329
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
commercial construction projects. Respondent Kirila
is now, and has been at all times material herein, a
corporation duly organized under, and existing by
virtue of the laws of the State of Ohio, with its
principal office and place of business located in
Brookfield, Ohio, where it is engaged in the construc-
tion of commercial buildings. Annually, in the course
and conduct of its business operations, each Respon-
dent receives products valued in excess of $50,000
directly from points located outside the State of Ohio.
We find, on the basis of the foregoing, that each
Respondent 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.
II. THE LABOR ORGANIZATION INVOLVED
United Counties Carpenters District Council, Unit-
ed Brotherhood of Carpenters and Joiners of America,
AFL-CIO, is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
On or about March 22, Respondent DeFiore,
through its agent and supervisor, Joseph J. DeFiore,
threatened employees that he would acquire nonunion
employees if they insisted on having a union steward
present on a jobsite. We find that by the aforesaid
threat, Respondent DeFiore interfered with, re-
strained, and coerced his employees in the exercise of
the rights guaranteed them under Section 7 of the Act,
and that, by such conduct, Respondent DeFiore
thereby engaged in, and is engaging in, unfair labor
practices within the meaning of Section 8(a)(1) of the
Act.
On or about March 21, Respondent Kirila, through
its president, officer, agent, and supervisor, Gene
Kirila, directed, instructed, or ordered Respondent
DeFiore, with whom it has business dealings, to lay off
employee Richard Hoffman; and, on or about March
21, Respondent DeFiore laid off Hoffman until March
27, because Hoffman had, or Respondents believed he
had, joined or assisted the Union, or engaged in
protected concerted activities for the purposes of
collective bargaining or other mutual aid or protec-
tion, or held the position of union steward. On or
about March 22, Respondent Kirila, through its agent
and supervisor, Gene Kirila, directed, instructed, or
ordered Respondent DeFiore, to terminate and, on or
about March 22, Respondent DeFiore did terminate,
the employment of Frank Sarisky, Galen Rice, and
Richard Freeburg, employees of Respondent DeFiore.
At all times since that date, Respondent DeFiore has
failed and refused, and continues to fail and refuse, to
reinstate said employees to their former or substantial-
ly equivalent positions of employment because Sari-
sky, Rice, and Freeburg had, or Respondents believed
they had, joined or assisted the Union and/or engaged
in protected concerted activities for the purpose of
collective bargaining or other mutual aid or protec-
tion. Accordingly, we find that by Respondents
aforesaid acts, Respondents discriminated against, and
are discriminating against, said employees in regard to
the terms and conditions of employment, thereby
discouraging membership in a labor organization, and
that by such conduct, Respondents have engaged in,
and are 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 Respondents set forth in section
III, above, occurring in connection with the opera-
tions 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
commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondents have engaged in
and are engaging in unfair labor practices within
meaning of Section 8(a)(l) and (3) of the Act, we shall
order that they cease and desist therefrom, and take
certain affirmative action designed to effectuate the
policies of the Act.
Having found that Respondents violated Section
8(a)(1) and (3) of the Act by discriminatorily laying
off Richard Hoffman and terminating Frank Sarisky,
Galen Rice, and Richard Freeburg, all employees of
Respondent DeFiore, and by discriminatorily failing
to reinstate Sarisky, Rice, and Freeburg, we shall
order that Respondents offer Sarisky, Rice, and
Freeburg immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without prejudice to
their seniority or other rights and privileges previously
enjoyed, and make Hoffman, Sarisky, Rice, and
Freeburg whole for any loss of earnings they may have
suffered due to the discrimination practiced against
them by paying each of them a sum of money equal to
what each normally would have earned as wages from
the date of discharge or layoff to the date of
reinstatement in Hoffman's case, or of said offers of
reinstatement for the remaining three employees, with
backpay and interest computed in the manner pre-
scribed by the Board in F W. Woolworth Company, 90
330
JOSEPH J. DEFIORE, BUILDERS
NLRB 289 (1950), and Florida Steel Corporation, 231
NLRB 651 (1977).'
The Board, upon the basis of the foregoing facts and
the entire record, makes the following:
CONCLUSIONS OF LAW
1. Kirila Contractors, Inc., and Joseph J. DeFiore,
d/b/a Joseph J. DeFiore, Builders, are each employers
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. United Counties Carpenters District Council,
United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. By threatening employees that it would acquire
nonunion employees if employees insisted on having a
union steward present on a jobsite, Respondent
DeFiore interfered with, restrained, and coerced
employees in the exercise of the 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(a)(1) of the Act.
4. By discriminating in regard to the hire and tenure
of employment of employees, or by directing, instruct-
ing, or ordering such action, thereby discouraging
membership in or activities on behalf of a labor
organization, Respondents have engaged in unfair
labor practices within the meaning of Section 8(a)(l)
and (3) 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
Relations Board hereby orders that the Respondents,
Kirila Contractors, Inc., Brookfield, Ohio, and Joseph
J. DeFiore, d/b/a Joseph J. DeFiore, Builders,
Youngstown, Ohio, their officers, agents, successors,
and assigns shall:
1. Cease and desist from:
(a) Threatening employees that Respondents would
acquire nonunion employees if the employees insisted
on having a union steward present on a jobsite.
(b) Directing, instructing, or ordering that employ-
ees be laid off or terminated because the employees
had, or Respondents believed the employees had,
joined or assisted the Union, or engaged in protected
' See, generally, Isis Plumbing d Heating Co.. 138 NLRB 716 (1962).
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
concerted activities for the purposes of collective
bargaining or other mutual aid or protection, or held
the position of union steward.
(c) Laying off, terminating, and refusing to reinstate
employees because the employees had, or Respondents
believed the employees had, joined or assisted the
Union, or engaged in protected concerted activities for
the purpose of collective bargaining or other mutual
aid or protection, or held the position of union
steward.
(d) 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 the
Board finds will effectuate the policies of the Act:
(a) Offer Frank Sarisky, Galen Rice, and Richard
Freeburg immediate and full reinstatement 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
previously enjoyed.
(b) Make Richard Hoffman, Frank Sarisky, Galen
Rice, and Richard Freeburg whole for any loss of
earnings they may have suffered due to the discrimina-
tion practiced against them by paying each of them a
sum equal to what he would have earned, less any
interim earnings plus interest.
(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 their worksites in Youngstown, Ohio,
and Brookfield, Ohio, copies of the attached notice
marked "Appendix." Copies of said notice, on forms
provided by the Regional Director for Region 8, after
being duly signed by Respondents' representatives,
shall be posted by Respondents immediately upon
receipt thereof, and be maintained by them for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondents to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 8, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
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."
331
DECISIONS OF 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 Act gives all
employees the right:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To engage in activities together for the
purpose of collective bargaining or other mutu-
al aid or protection
To refrain from the exercise of any or all of
such activities.
WE WILL NOT do anything to interfere with
these rights.
WE WILL NOT threaten employees that we will
acquire nonunion employees if the employees
insist on having a union steward on a jobsite.
WE WILL NOT layoff, terminate, or refuse to
reinstate our employees or direct, instruct, or
order such action because our employees have
chosen to join or assist the Union, have engaged
in protected concerted activities for the purpose
of collective bargaining or other mutual aid or
protection, or have acted as union stewards.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL offer Frank Sarisky, Galen Rice, and
Richard Freeburg immediate and full reinstate-
ment 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 previously enjoyed.
WE WILL make Richard Hoffman, Frank
Sarisky, Galen Rice, and Richard Freebrug whole
for any loss of earnings they may have suffered
due to the discrimination practiced against them
by paying each of them a sum equal to what he
would have earned, less any net interim earnings,
plus interest.
KIRILA CONTRACTORS, INC.
JOSEPH J. DEFIORE D/B/A JOSEPH J.
DEFIORE, BUILDERS
332