Kochevar Enterprises, Inc.

National Labor Relations Board - Board Decisions

Jun 29, 1981

256 N.L.R.B. 937 (N.L.R.B. 1981)

KOCHEVAR ENTERPRISES, INC. 937
Kochevar Enterprises, Inc. and Tom Caldwell. Case
27-CA-7030
June 29, 1981
DECISION AND ORDER
Upon a charge filed on November 26, 1980, by
Tom Caldwell, an Individual, herein called the
Charging Party, and duly served on Kochevar En-
terprises, Inc., herein called Respondent, the Gen-
eral Counsel of the National Labor Relations
Board, by the Acting Regional Director for Region
27, issued a complaint on December 17, 1980,
against Respondent, alleging that Respondent had
engaged in and was engaging in unfair labor prac-
tices affecting commerce within the meaning of
Section 8(a)(1) and Section 2(6) and (7) of the Na-
tional Labor Relations Act, as amended. Copies of
the charge and the complaint and notice of hearing
before an administrative law judge were duly
served on the parties to this proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on or about No-
vember 21, 1980, Respondent discharged Tom
Caldwell, an employee at its Leadville, Colorado,
place of business, because of said employee's pro-
tected concerted activities, including the prepara-
tion and circulation of an employee petition, and at
all times since has failed and refused, and continues
to fail and refuse, to reinstate this employee. The
complaint also alleges in substance that on or about
December 9, 1980, Respondent, through its presi-
dent, Bernie Kochevar, has interfered with, re-
strained, and coerced its employees in the exercise
of rights guaranteed in Section 7 of the Act, spe-
cifically by interrogating unnamed employees
about their and other employees' protected con-
certed activities. Respondent failed to file an
answer to the complaint.
On April 27, 1981, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on May 1,
1981, the Board issued an order transferring the
proceeding to the Board and a Notice To Show
Cause why the General Counsel's Motion for Sum-
mary Judgment should not be granted. Respondent
thereafter filed a response to the Notice To Show
Cause. However, on May 13, 1981, the Board re-
fused to accept the response since Respondent had
failed to furnish to the Board proof of service of
the response on the other parties involved in this
matter. Subsequently, upon Respondent's failure to
furnish such proof within 5 days of its letter of
May 13, 1981, the Board rejected and returned Re-
spondent's documents.
Upon the entire record in this proceeding, the
Board makes the following:
256 NLRB No. 129
Ruling on the Motion for Summary Judgment
Section 102.20 of the Board's Rules and Regula-
tions, Series 8, as amended, provides:
The respondent shall, within 10 days from the
service of the complaint, file an answer there-
to. 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 iswithout 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
Respondent specifically stated that, unless an
answer to the complaint was filed within 10 days
of service thereof, all of the allegations in the com-
plaint would be deemed to be true and could be so
found by the Board. As noted above, Respondent
has failed to file an answer to the complaint and,
although an attempt was made to file a response to
the Notice To Show Cause, such attempt was re-
jected by the Board due to Respondent's failure to
provide the Board with proof of service of the re-
sponse on the other parties involved in this matter.
Accordingly, under the rule set forth above, no
good cause having been shown for the failure to
file a timely answer, the allegations of the com-
plaint are deemed admitted and are found to be
true. We shall 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 is, and has been at all times material
herein, a corporation duly organized under and ex-
isting by virtue of the laws of the State of Colora-
do, and maintains its principal office and place of
business at Leadville, Colorado. It is engaged in
the business of land survey. Respondent, in the
course and conduct of its business operations, annu-
ally provides services valued in excess of $50,000,
directly to other business enterprises, which sell
and ship goods and materials valued in excess of
$50,000 annually from locations in Colorado to lo-
cations outside Colorado.
KOCHEVAR NTERPRISES. NC.
938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find, on the basis of the foregoing, that Re-
spondent 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 CHARGING PARTY
Tom Caldwell is an employee within the mean-
ing of Section 2(3) of the Act.
III. THE UNFAIR LABOR PRACTICES
The 8(a)(1) Violations
On or about November 21, 1980, Respondent
discharged Tom Caldwell, an employee at its
Leadville, Colorado, place of business, and at all
times since has failed and refused, and continues to
fail and refuse, to reinstate this employee because
he engaged in concerted activities protected by the
Act, including the preparation and circulation of an
employee petition.
On or about December 9, 1980, Respondent,
acting by and through Bernie Kochevar, its presi-
dent, interrogated employees about their and other
employees' protected concerted activities.
We find that, by the acts and conduct set forth
above, Respondent has interfered with, restrained,
and coerced, and is interfering with, restraining,
and coercing, employees in the exercise of the
rights guaranteed them under Section 7 of the Act,
and thereby engaged in, and is engaging in, unfair
labor practices within the meaning of Section
8(a)(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 oper-
ations described in section I, above, have a close,
intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and
tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of com-
merce.
v. THE REMEDY
Having found that Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(l) 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.
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Kochevar Enterprises, Inc., is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Tom Caldwell is an employee within the
meaning of Section 2(3) of the Act.
3. By discharging and refusing to reinstate Tom
Caldwell, because he engaged in concerted activi-
ties protected by the Act, Respondent has engaged
in and is engaging in an unfair labor practice
within the meaning of Section 8(a)(1) of the Act.
4. By interrogating employees about their and
other employees' protected concerted activities,
Respondent has engaged in and is engaging in an
unfair labor practice within the meaning of Section
8(a)(l) of the Act.
5. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning 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 Re-
lations Board hereby orders that the Respondent,
Kochevar Enterprises, Inc., Leadville, Colorado,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating employees about their and
other employees' protected concerted activities.
(b) Discharging or refusing to reinstate employ-
ees because they engage in protected concerted ac-
tivities within the meaning of the National Labor
Relations Act.
(c) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise 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 immediate and full reinstatement to
Tom Caldwell to his former job or, if such job no
longer exists, to a substantially equivalent job,
without prejudice to his seniority or other rights
and privileges previously enjoyed, and make him
whole for any loss of earnings he may have suf-
fered by payment to him of a sum equal to the
amount he normally would have earned as wages
from the date of his discharge to the date of Re-
spondent's offer of reinstatement, less net earnings
in accordance with the formula set forth in F. W.
Woolworth Company, 90 NLRB 289 (1950), with in-
KOCHEVAR ENTERPRISES, INC. 939
terest as prescribed in Florida Steel Corporation, 231
NLRB 651 (1977).'
(b) Post at its Leadville, Colorado, facility copies
of the attached notice marked "Appendix." 2
Copies of said notice, on forms provided by the
Regional Director for Region 27, 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 thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 27,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
i See generally Irs Plumbing & leuting Co,e 138 NI.RB 716h 19l2) II
accordance with his dissent in Ompui Medical (C'rporaion. 250 NLRB
146 (1
9
80), Member Jenkins would award interest on the backpay duc
based on the formula set forth therein
2 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals. the words in the notice readlilng "'osted by
Order of the National Labor Relations Board" shall read "Po ted P'lrsu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National labor RelationIs Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WIL. NOT discharge or refuse to rein-
state employees because they engage in pro-
tected concerted activities within the meaning
of the National Labor Relations Act.
WE WILL NOT interrogate employees about
their or other employees' protected concerted
activities.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of the rights guaranteed them in Sec-
tion 7 of the Act.
WE WILL offer immediate and full reinstate-
ment to Tom Caldwell to his former job or, if
that job no longer exists, to a substantially
equivalent job, without prejudice to his senior-
ity or other rights and privileges previously
enjoyed, and make him whole for any loss of
earnings suffered as a result of being dis-
charged.
KOCHEIVAR ENTERPRISES, INC.
KOCHEVAR NTERPRISES, INC.