Kathy'S Kranes Corp.

National Labor Relations Board - Board Decisions

Sep 24, 1984

272 N.L.R.B. 262 (N.L.R.B. 1984)

262

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kathy's Kranes Corporation and Kenneth E Stae-
hell, Kathy's Krane & Construction and Con-
struction, Building Material, Ice & Coal Driv-
ers & Helpers & Inside Employees, Local No
221, Petitioner Cases 18-CA-8665 and 18-
RC-13578
24 September 1984
DECISION, ORDER, AND DIRECTION
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
Upon a charge filed by Kenneth E Staeheli 16
March 1984, the General Counsel of the National
Labor Relations Board issued a complaint 3 May
1984 against the Company, the Respondent, alleg-
ing that it has violated Section 8(a)(3) and (1) of
the National Labor Relations Act Although prop-
erly served copies of the charge and complaint,
and notwithstanding a voluntary extension of time
for filing an answer, the Respondent has failed to
file an answer 1
On 13 June 1984 the General Counsel filed a
Motion for Summary Judgment On 19 June 1984
the Board issued an order transferring the proceed-
ing to the Board and a Notice to Show Cause why
the motion should not be granted The Company
filed no response The allegations in the motion are
therefore undisputed
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
Ruling on Motion for Summary Judgment
Section 102 20 of the Board's Rules and Regula-
tions provides that the allegations in the complaint
shall be deemed admitted if an answer is not filed
within 10 days from service of the complaint,
unless good cause is shown The complaint states
that unless an answer is filed within 10 days of
service, "all of the allegations in the complaint
shall be deemed to be admitted to be true and shall
be so found by the Board" Further, the undisputed
allegations in the Motion for Summary Judgment
disclose that the General Counsel, by letter dated
17 May 1984, notified the Company that unless an
answer was received by 25 May 1984, a Motion for
Summary Judgment would be filed
In the absence of good cause being shown for
the failure to file a timely answer, we grant the
' On 24 May 1984 the Acting Regional Director for Region 18 Issued
a report in which he consolidated the representation and unfair labor
practice proceedings for purposes of hearing The General Counsel seeks
summary judgment only in the unfair labor practice case and requests
that the representation proceeding be severed and remanded to the Re
gional Director for the purpose of making further findings in that case
General Counsel's Motion for Summary Judg-
ment 2
On the entire record, the Board makes the fol-
lowing
FINDINGS OF FACT
I JURISDICTION
The Company, a Minnesota corporation, is en-
gaged as a general contractor in commercial build-
ing and construction, and provides window re-
placement, roof repair, an excavation services The
Company, at its St Paul, Minnesota facility and at
construction projects within the State of Minneso-
ta, annually purchases and receives goods and ma-
terials valued in excess of $50,000 either directly
from suppliers located outside the State of Minne-
sota or from other enterprises located within the
State of Minnesota which had received said goods
and materials directly from points outside the State
of Minnesota We find that the Company is an em-
ployer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act and that the Union
is a labor organization within the meaning of Sec-
tion 2(5) of the Act
II ALLEGED UNFAIR LABOR PRACTICES
About 16 March 1984 the Respondent, acting
through Controller Cohn Anderson, a supervisor
within the meaning of Section 2(11) of the Act, in-
terrogated employees regarding their union activi-
ties and threatened to discharge employees who en-
gaged in activities in support of the Union We find
that by such conduct the Respondent has coerced
employees in violation of Section 8(a)(1) of the
Act Additionally, about 16 March 1984 the Re-
spondent discharged employee Kenneth E Staeheli
because he engaged in union activities We find
that the Respondent, by discharging Staeheli for
his Section 7 activity, violated Section 8(a)(3) and
(1) of the Act 3
CONCLUSIONS OF LAW
1 By coercively interrogating employees and
threatening to discharge employees who engage in
activities in support of the Union, the Respondent
2 In granting the General Counsel s Motion for Summary Judgment,
Chairman Dotson specifically relies on the total failure of the Respondent
to contest either the factual allegations or legal conclusions of the Gener
al Counsel s complaint Thus, the Chairman regards this proceeding as es-
sentially a default judgment which is without precedential value
As noted by the General Counsel in the Motion for Summary Judg
ment, our finding that Staeheli was discriminatorily discharged establishes
his status as an employee, but does not resolve other issues concerning
his eligibility to vote Accordingly we shall sever the representation case
from this proceeding and remand It to the Regional Director for further
findings regarding Staeheli s eligibility
272 NLRB No 35
KATHY'S KRANES CORP 263
engaged in unfair labor practices within the mean-
ing of Section 8(a)(1) of the Act
2 By discriminatorily discharging Kenneth E
Staeheli, about 16 March 1984, because of his
union activities, the Respondent violated Section
8(a)(3) and (1) of the Act
3 The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act
THE 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 designed to effectuate the policies of the
Act
We shall order the Respondent to offer Kenneth
E Staeheli reinstatement and make him whole for
any loss of earnings and other benefits, computed
on a quarterly basis from date of discharge to date
of proper offer of reinstatement, less any net inter-
im earnings as prescribed in F W Woolworth Co,
90 NLRB 289 (1950), plus interest as computed in
Florida Steel Corp, 231 NLRB 651 (1977) 4
ORDER
The National Labor Relations Board orders that
the Respondent, Kathy's Kranes Corporation, St
Paul, Minnesota, its officers, agents, successors, and
assigns, shall
1 Cease and desist from
(a) Interrogating employees regarding their
union activities
(b) Threatening employees with discharge if they
engage in activities in support of the Union
(c) Discharging or otherwise discriminating
against employees because of their union activities
(d) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act
2 Take the following affirmative action neces-
sary to effectuate the policies of the Act
(a) Offer Kenneth E Staeheli 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 or any other
rights or privileges previously enjoyed, and make
him whole for any loss of earnings and other bene-
fits suffered as a result of the discrimination prac-
ticed against him, in the manner set forth in the
remedy section of the decision
(b) Remove from its files any reference to the
unlawful discharge of Kenneth E Staeheli and
4 See generally Isis Plumbing Co, 138 NLRB 716 (1962)
notify him in writing that this has been done and
that the discharge will not be used against him in
any way
(c) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, 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 St Paul, Minnesota facility copies
of the attached notice marked "Appendix "5
Copies of the notice, on forms provided by the Re-
gional Director for Region 18, after being signed
by the Respondent's authorized representative,
shall be posted by the Respondent immediately
upon receipt 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 notices are not altered, defaced,
or covered by any other material
(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply
DIRECTION
IT IS DIRECTED that Case 18-RC-13578 be sev-
ered from this consolidated proceeding and re-
manded to the Regional Director for Region 18 for
the purpose of making further findings with respect
to the voting eligibility of Kenneth E Staeheli
5 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 Na
tional Labor Relations Board shall read Posted Pursuant to a Judgment
of the United States Court of Appeals Encorcing an Order of the Nation
al 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 ordered us to post and abide by this notice
Section 7 of the Act gives employees these
rights
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities
WE WILL NOT discharge or otherwise discrimi-
nate against any of you for supporting Construc-
tion, Building Material, Ice & Coal Drivers &
Helpers & Inside Employees, Local No 221, or
any other union
WE WILL NOT threaten you with discharge if
you engage in activities in support of the Union
WE WILL NOT coercively question you about
your union support or activities
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act
WE WILL offer Kenneth E Staeheli 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 or any
other rights or privileges previously enjoyed and
WE WILL make him whole for any loss of earnings
and other benefits resulting from his discharge, less
any net interim earnings, plus interest
WE WILL notify him that we have removed from
our files any reference to his discharge and that the
discharge will not be used against him in any way
KATHY'S KRANES CORPORATION