KJS Construction

National Labor Relations Board - Board Decisions

Apr 25, 2005

344 N.L.R.B. 66 (N.L.R.B. 2005)

344 NLRB No. 66
KJS Construction, Inc. and New York City District
Council of Carpenters, United Brotherhood of
Carpenters and Joiners of America. Case 2–
CA–36393–1
April 25, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS
LIEBMAN AND SCHAUMBER
The General Counsel seeks a default judgment in this
case on the ground that the Respondent has failed to file
an answer to the complaint. Upon a charge and amended
charges filed by the Union on July 12, August 17, and
September 28, 2004, respectively, the General Counsel
issued the complaint on October 29, 2004 against KJS
Construction, Inc., the Respondent, alleging that it has
violated Section 8(a)(1), (3), and (4) of the Act. The
Respondent failed to file an answer.
On January 21, 2005, the General Counsel filed a Mo-
tion for Default Judgment with the Board. On January
26, 2005, the Board issued an order transferring the pro-
ceeding to the Board and a Notice to Show Cause why
the motion should not be granted. The Respondent filed
no response. The allegations in the motion are therefore
undisputed.
Ruling on Motion for Default Judgment
Section 102.20 of the Board’s Rules and Regulations
provides that the allegations in the complaint shall be
deemed admitted if an answer is not filed within 14 days
from service of the complaint, unless good cause is
shown. In addition, the complaint affirmatively stated
that unless an answer was filed by November 12, 2004,
all the allegations in the complaint would be considered
admitted. Further, the undisputed allegations in the Gen-
eral Counsel’s motion disclose that the Region, by letter
dated December 3, 2004, notified the Respondent that
unless an answer was received by December 17, 2004, a
motion for default judgment would be filed.
In the absence of good cause being shown for the fail-
ure to file a timely answer, we grant the General Coun-
sel's motion for default judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a New York
corporation, with an office and place of business located
at 244 5th Avenue, Suite 268, New York, New York, has
been engaged in the business of providing general con-
tracting services, including at project sites located at St.
Nicholas Avenue between 199th Street and 120th Street,
New York, New York (the St. Nicholas Avenue site),
and at Amsterdam Avenue around 145th Street, New
York, New York.
Annually, in conducting its operations described
above, the Respondent performs services valued in ex-
cess of $50,000 to general contractors doing business
within the State of New York, which themselves are di-
rectly engaged in interstate commerce.
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 New York City District Council
of Carpenters, United Brotherhood of Carpenters and
Joiners of America (the Union) is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times, the following individuals held
the positions set forth opposite their respective names
and have been supervisors of the Respondent within the
meaning of Section 2(11) of the Act and agents of the
Respondent acting in its behalf:
Shamsuddin Riza President and CEO
Josh Riza Supervisor
Von Dobson Supervisor
The Respondent, by Riza:
(a) In or around May 2004, in front of the St. Nicholas
Avenue site:
(i) Created the impression among its employees that
their union activities were under surveillance.
(ii) Directed employees not to associate with represen-
tatives of the Union.
(b) In or around May or June 2004, at the St. Nicholas
Avenue site, instructed employees not to wear apparel
with union insignia.
(c) On or about June 19, 2004, at the St. Nicholas
Avenue site, informed employees that they were dis-
charged because they attended a representation hearing
before the Board.
On or about the dates in 2004 set forth opposite their
names, the Respondent discharged the following em-
ployees:
Timothy Capps June 3
Willie Wilson June 9
Alex Johnson June 19
Charles Johnson June 19
Vincent Maldonado In or around June
Wilbert Laster In or around June
Since on or about the dates set forth opposite the em-
ployees’ names set forth above, the Respondent has
failed and refused to reinstate or offer to reinstate the
employees to their former positions of employment.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The Respondent discharged the above-named employ-
ees because they joined and supported the Union and
engaged in concerted activities, and to discourage em-
ployees from engaging in these activities.
The Respondent discharged Alex Johnson and Charles
Johnson also because they appeared, with the Union, at a
representation hearing before the Board in Case 2–RC–
22861.
CONCLUSIONS OF LAW
1. By creating the impression of surveillance of em-
ployees’ union activities, directing employees not to as-
sociate with representatives of the Union, instructing
employees not to wear apparel with union insignia, and
informing employees that they were discharged because
they attended a representation hearing before the Board,
the Respondent has interfered with, restrained, and co-
erced employees in the exercise of the rights guaranteed
by Section 7 of the Act, in violation of Section 8(a)(1) of
the Act.
2. By discharging employees Timothy Capps, Alex
Johnson, Charles Johnson, Wilbert Laster, Vincent
Maldonado, and Willie Wilson because they joined and
supported the Union and engaged in concerted activities,
the Respondent has discriminated in regard to the hire or
tenure or terms and conditions of employment of its em-
ployees, thereby discouraging membership in a labor
organization, in violation of Section 8(a)(3) and (1) of
the Act.
3. By discharging employees Alex Johnson and
Charles Johnson because they appeared, with the Union,
at a representation hearing before the Board, the Respon-
dent has discriminated against employees for giving tes-
timony under the Act, in violation of Section 8(a)(4) and
(1) of the Act.
The Respondent’s unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in cer-
tain 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. Specifically, having
found that the Respondent has violated the Act by dis-
charging Timothy Capps, Alex Johnson, Charles John-
son, Wilbert Laster, Vincent Maldonado, and Willie Wil-
son, we shall order the Respondent to offer them 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 and
privileges previously enjoyed. We also shall order the
Respondent to make each of these employees whole for
any loss of earnings and other benefits suffered as a re-
sult of the discrimination against them. Backpay shall be
computed in accordance with F. W. Woolworth Co., 90
NLRB 289 (1950), with interest as prescribed in New
Horizons for the Retarded, 283 NLRB 1173 (1987). The
Respondent shall also be required to remove from its
files all references to the unlawful discharges, and to
notify the employees in writing that this has been done
and that the discharges will not be used against them in
any way.
ORDER
The National Labor Relations Board orders that the
Respondent, KJS Construction, Inc., New York, New
York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Creating the impression among employees that
their union activities are under surveillance.
(b) Directing employees not to associate with repre-
sentatives of the Union.
(c) Instructing employees not to wear apparel with un-
ion insignia.
(d) Informing employees that they were discharged
because they attended a representation hearing before the
Board.
(e) Discharging employees because they join or sup-
port a union, engage in concerted activities, or appear at
a representation hearing before the Board.
(f) 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
Timothy Capps, Alex Johnson, Charles Johnson, Wilbert
Laster, Vincent Maldonado, and Willie Wilson full rein-
statement to their former positions or, if those positions
no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights
and privileges previously enjoyed.
(b) Make whole Timothy Capps, Alex Johnson,
Charles Johnson, Wilbert Laster, Vincent Maldonado,
and Willie Wilson for any loss of earnings and other
benefits resulting from their unlawful discharges, with
interest, in the manner set forth in the remedy section of
this decision.
(c) Within 14 days from the date of this Order, re-
move from its files all references to the unlawful dis-
charges of Timothy Capps, Alex Johnson, Charles John-
son, Wilbert Laster, Vincent Maldonado, and Willie Wil-
son, and within 3 days thereafter, notify them in writing
that this has been done and that the unlawful discharges
will not be used against them in any way.
KJS CONSTRUCTION, INC.
(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, 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 New York, New York, copies of the at-
tached notice marked “Appendix.”1 Copies of the notice,
on forms provided by the Regional Director for Region
2, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent 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 al-
tered, 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 facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since May 2004.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
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 vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join or assist a union

1 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 Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT create the impression among you that
your union activites are under surveillance.
WE WILL NOT direct you not to associate with repre-
sentatives of New York City District Council of Carpen-
ters, United Brotherhood of Carpenters and Joiners of
America, or any other labor organization.
WE WILL NOT instruct you not to wear apparel with un-
ion insignia.
WE WILL NOT inform you that you were discharged be-
cause you attended a representation hearing before the
Board.
WE WILL NOT discharge you because you join or sup-
port New York City District Council of Carpenters,
United Brotherhood of Carpenters and Joiners of Amer-
ica, or any other labor organization, engage in concerted
activities, or attend a representation hearing before the
Board.
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 the Board’s
Order, offer Timothy Capps, Alex Johnson, Charles
Johnson, Wilbert Laster, Vincent Maldonado, and Willie
Wilson full reinstatement to their former positions or, if
those positions no longer exist, to substantially equiva-
lent positions, without prejudice to their seniority or any
other rights and privileges previously enjoyed.
WE WILL make Timothy Capps, Alex Johnson, Charles
Johnson, Wilbert Laster, Vincent Maldonado, and Willie
Wilson whole for any loss of earnings and other benefits
suffered as a result of their unlawful discharges, with
interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files all references to the unlawful
discharges of Timothy Capps, Alex Johnson, Charles John-
son, Wilbert Laster, Vincent Maldonado, and Willie Wil-
son, and, WE WILL, within 3 days thereafter, notify them in
writing that this has been done, and that the unlawful dis-
charges will not be used against them in any way.
KJS CONSTRUCTION, INC.