JR Construction of St Cloud

National Labor Relations Board - Board Decisions

Aug 29, 1996

322 N.L.R.B. 3 (N.L.R.B. 1996)

1
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.
JR Construction of St. Cloud, Ltd. and Inter-
national Association of Bridge, Structural and
Ornamental Iron Workers, Local Union 512.
Case 18–CA–13651
August 29, 1996
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND FOX
Upon a charge filed by the Union on June 16, 1995,
the General Counsel of the National Labor Relations
Board issued a complaint on January 18, 1996 against
JR Construction of St. Cloud, Ltd., the Respondent, al­
leging that it has violated Section 8(a)(1) and (3) of
the National Labor Relations Act. Although properly
served copies of the charge and complaint, the Re­
spondent failed to file an answer.
About April 3, 1996, the Respondent executed and
entered into an informal Settlement Agreement which
was approved by the Regional Director on April 19,
1996, providing, inter alia, that the Respondent would
pay backpay to the two alleged discriminatees, would
remove references to their discharges from their per­
sonnel files, and would mail copies of the notice to
employees.
By letters dated May 29 and July 1, 1996, the Re­
gional Office’s compliance supervisor asked the Re­
spondent to comply with the terms of the Settlement
Agreement and advised the Respondent that if it did
not do so by July 9, 1996, the Settlement Agreement
would be revoked and the complaint reissued.
Since about April 16, 1996, the Respondent has
failed and refused to comply with any aspect of the
Settlement Agreement and thereby has violated, and
continues to violate, the terms of the Settlement Agree­
ment, and has nullified and failed and refused to give
force and effect to provisions of the Settlement Agree­
ment.
About July 10, 1996, the Regional Director issued
an order revoking approval of and vacating and setting
aside the Settlement Agreement and reissued the com­
plaint originally issued on January 18, 1996. Although
properly served with the July 10 reissued complaint,
the Respondent failed to file an answer.
On August 5, 1996, the General Counsel filed a Mo­
tion for Summary Judgment with the Board. On Au-
gust 7, 1996, the Board issued an order transferring the
proceeding to the Board and a Notice to Show Cause
why the motion should not be granted. The Respond­
ent 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 complaint
affirmatively notes that unless an answer is filed within
14 days of service, all the allegations in the complaint
will be considered admitted.
In the absence of good cause being shown for the
failure to file a timely answer,1 we grant the General
Counsel’s Motion for Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a Minnesota
corporation, with an office and place of business in St.
Cloud, Minnesota, has been engaged as a steel erection
contractor. During the 1995 calendar year, the Re­
spondent, in conducting its business operations, de-
rived gross revenues in excess of $1,000,000 and pur­
chased and received at its St. Cloud, Minnesota facility
products, goods, and materials valued in excess of
$50,000 from other enterprises located within the State
of Minnesota, each of which other enterprises had re­
ceived the said products, goods, and materials directly
from points located outside the State of Minnesota. 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
Since about May 5, 1995, the Respondent has inter­
fered with, restrained, and coerced employees in the
exercise of rights guaranteed in Section 7 of the Act
by interrogating an employee regarding that employ­
ee’s union membership, activities, and sympathies.
About May 5, 1995, the Respondent discharged its
employees Michael Bergquist and Eugene McClain be-
cause they assisted the Union and engaged in con­
certed activities, and took this action to discourage em­
ployees from engaging in these 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
unfair labor practices affecting commerce within the
1 Although no further reminder or warning of the consequences of
failing to file an answer was sent or given to the Respondent, this
does not warrant denial of the motion. See, e.g., Superior Industries,
289 NLRB 834, 835 fn. 13 (1988).
322 NLRB No. 3
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
meaning of Section 8(a)(1) and Section 2(6) and (7) of
the Act. By discharging Michael Bergquist and Eugene
McClain, the Respondent has also been discriminating
in regard to the hire or tenure 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. Specifi­
cally, having found that the Respondent has violated
Section 8(a)(3) and (1) by discharging Michael
Bergquist and Eugene McClain, we shall order the Re­
spondent to offer the discriminatees immediate and full
reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights or
privileges previously enjoyed, and to 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. Wool-
worth Co., 90 NLRB 289 (1950), with interest as pre-
scribed in New Horizons for the Retarded, 283 NLRB
1173 (1987). The Respondent shall also be required to
remove from its files any and all references to the un­
lawful discharges, and to notify the discriminatees in
writing that this has been done.
ORDER
The National Labor Relations Board orders that the
Respondent, JR Construction of St. Cloud, Ltd., St.
Cloud, Minnesota, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Interrogating employees regarding their union
membership, activities, or sympathies.
(b) Discharging employees because they assist the
Union or engage in concerted activities, or to discour­
age employees from engaging in these activities.
(c) 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
Michael Bergquist and Eugene McClain 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 privi­
leges previously enjoyed.
(b) Make Michael Bergquist and Eugene McClain
whole 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 14 days from the date of this Order, re-
move from its files any and all references to the un­
lawful discharges and within 3 days thereafter notify
the discriminatees in writing that this has been done
and that the discharges will not be used against them
in any way.
(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. Cloud, Minnesota, copies of the at­
tached notice marked ‘‘Appendix.’’2 Copies of the no­
tice, on forms provided by the Regional Director for
Region 18, after being signed by the Respondent’s au­
thorized 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
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 June 16, 1995.
(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
2 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.’’
JR CONSTRUCTION OF ST. CLOUD, LTD. 3
attesting to the steps that the Respondent has taken to
comply.
Dated, Washington, D.C. August 29, 1996
������������������
William B. Gould IV, Chairman
������������������
Margaret A. Browning, Member
������������������
Sarah M. Fox, 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 interrogate employees regarding their
union membership, activities, or sympathies.
WE WILL NOT discharge employees because they as­
sist the International Association of Bridge, Structural
and Ornamental Iron Workers, Local Union 512 or en-
gage in concerted activities, or to discourage employ­
ees from engaging in these 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 this
Order, offer Michael Bergquist and Eugene McClain
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.
WE WILL make Michael Bergquist and Eugene
McClain whole, with interest, for any loss of earnings
and other benefits suffered as a result of the discrimi­
nation against them.
WE WILL, within 14 days from the date of this
Order, remove from our files any and all references to
the unlawful discharges and within 3 days thereafter
notify the discriminatees in writing that this has been
done and that the discharges will not be used against
them in any way.
JR CONSTRUCTION OF ST. CLOUD, LTD.