Lassiter Construction Corp

National Labor Relations Board - Board Decisions

Mar 14, 1989

293 N.L.R.B. 177 (N.L.R.B. 1989)

LASSITER CONSTRUCTION CORP 177
Lassiter Construction Corp and Owen Campbell and
Local Union 59, Mason Tenders District Coun-
cil of Greater New York , Party to the Contract
Case 2-CA-22676
March 14, 1989
DECISION AND ORDER
BY MEMBERS CRACRAFT, HIGGINS, AND
DEVANEY
Upon a charge filed by Owen Campbell, an indi
vidual, on February 10, 1988, the General Counsel
of the National Labor Relations Board issued a
complaint on April 29, 1988, against Lassiter Con-
struction Corp, the Respondent, alleging 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 Respond-
ent has failed to file an adequate answer
On December 2, 1988, the General Counsel filed
a Motion for Summary Judgment On December 8,
1988, 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
Respondent 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 14 days from service of the complaint,
unless good cause is shown The complaint states
that unless an answer is filed, "all the allegations in
the Complaint shall be deemed to be admitted to be
true and shall be so found by the Board "i Further,
the undisputed allegations in the Motion for Sum-
mary Judgment disclose that the counsel for the
General Counsel, by letter dated June 15, 1988, no
tified the Respondent that unless an answer was re-
ceived by June 24, 1988, a Motion for Summary
Judgment would be filed In addition, counsel for
the General Counsel, by letter dated June 30, 1988,
informed the Respondent that if it did not file an
answer by July 15, 1988, a Motion for Summary
Judgment would be filed
By letter dated July 12, 1988, the Respondent
stated, inter alia, that Owen Campbell was hired as
a temporary elevator operator, he swept the floors
during renovation of the elevators, and there `was
never any intent to involve Mr Campbell in the
Mason Tenders Union " On July 28, 1988, by tele-
phone, the counsel for the General Counsel in-
formed the Respondent that its letter was an insuf
ficient answer because it failed to specifically
admit, deny, or explain each of the the complaint's
allegations By letter dated August 4, 1988, the
counsel for the General Counsel notified the Re-
spondent that unless an answer was received by
August 12, 1988, a Motion for Summary Judgment
would be filed, informed the Respondent's presi
dent that if he had any questions he could call her
at the number listed, and sent the Respondent a
copy of the applicable Board's Rules and Regula
tions No additional response from the Respondent
was received
We find that the letter dated July 12, 1988 is in-
sufficient to constitute an answer to the complaint
under Section 102 20 of the Board's Rules and
Regulations because it does not specifically admit,
deny, or explain each of the allegations in the com-
plaint See Kramer Volkswagen, 284 NLRB No 28
(June 15, 1987) (unpublished), and Travelodge San
Francisco Civic Center, 242 NLRB 287 (1979) Fur-
ther, we note there is no indication that the Charg-
ing Party was served with a copy of this letter
Travelodge, supra at 288 In the absence of good
cause being shown for the failure to file a timely
answer, we grant the General Counsel's Motion for
Summary Judgment
On the entire record, the Board makes the fol
lowing
FINDINGS OF FACT
I JURISDICTION
The Respondent, a corporation with an office
and place of business in New York, New York, has
been engaged as a general contractor in the build
ing and construction industry, performing renova-
tion and construction work During the 12-month
period ending April 29, 1988, the Respondent pur-
chased and received at its New York, New York
facility products, goods, and materials valued in
excess of $50,000 directly from points outside the
State of New York 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 organization within
the meaning of Section 2(5) of the Act
' The complaint stated that an answer must be filed within 10 days of
service which is less than the 14 days provided for in Sec 102 20 of the
Board s Rules and Regulations However this did not prejudice the Re
spondent since it was given several extensions to answer the complaint
beyond the 14-day period
II ALLEGED UNFAIR LABOR PRACTICES
Since on or about July 1987, the Respondent and
the Union have maintained a collective-bargaining
293 NLRB No 27
178 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
agreement covering wages, hours, and other terms
and conditions of employment for the Respondent's
employees who are employed as mason tenders at
the Respondent's jobsites located in the borough of
Manhattan
Since November 1987 until January 1988, the
Respondent employed Owen Campbell as a mason
tender, but has failed to apply the terms and condi
tions of employment contained in the collective-
bargaining agreement to him, because he was not a
member of the Union
By these acts the Respondent has discriminated
in the terms and conditions of employment by en-
couraging membership in the Union in violation of
Section 8(a)(1) and (3) of the Act
CONCLUSIONS OF LAW
By failing to apply the terms of the collective-
bargaining agreement to Owen Campbell, the Re-
spondent has engaged in unfair labor practices of
fecting commerce within the meaning of Section
8(a)(1) and (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 designed to effectuate the policies of the
Act
We shall order the Respondent to adhere to the
terms and conditions of its collective bargaining
agreement, and make whole Owen Campbell for
any loss of earnings or other benefits suffered as a
result of the failure to abide by the terms of its col-
lective-bargaining agreement, to be computed in
the manner prescribed in Ogle Protection Service,
183 NLRB 682 (1970), with interest to be comput-
ed in the manner prescribed in New Horizons for the
Retarded 2
2 Take the following affirmative action neces-
sary to effectuate the policies of the Act
(a) Apply the terms and conditions of its collec
tive-bargaining agreement with the Union to all
unit employees without regard to their membership
or nonmembership in the Union
(b) Make Owen Campbell whole for any loss of
earnings or other benefits suffered as a result of the
Respondent's failure to abide by the terms of its
collective-bargaining agreement with the Union, in
the manner set forth in the remedy section of this
decision
(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 facility in New York, New York,
copies of the attached notice marked "Appendix "3
Copies of the notice, on forms provided by the Re-
gional Director for Region 2, after being signed by
the Respondent's authorized representative, shall be
posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no
tices to employees are customarily posted Reason-
able 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
S 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 Nation
al 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
ORDER
The National Labor Relations Board orders that
the Respondent, Lassiter Construction Corp, New
York, New York, its officers, agents, successors,
and assigns, shall
1 Cease and desist from
(a) Failing to adhere to the terms of its collec-
tive-bargaining agreement with the Union by fail
ing to apply the collective-bargaining agreement to
unit employees who are not members of the Union
(b) 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
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
WE WILL NOT fail to adhere to the terms of our
collective-bargaining agreement with the Union by
failing to apply the agreement to unit employees
who are not members of the Union
2 283 NLRB 1173 (1987)
LASSITER CONSTRUCTION CORP 179
WE WILL NOT in any like or related manner WE WILL make whole Owen Campbell for any
interfere with , restrain, or coerce you in the exer- loss of earnings and other benefits suffered as a
cise of the rights guaranteed you by Section 7 of result of our failure to abide by the terms of our
the Act collective -bargaining agreement with the Union,
WE WILL apply the terms of our collective -bar- plus interest
gaining agreement with the Union to all unit em
ployees without regard to their membership or LASSITER CONSTRUCTION CORP
nonmembership in the Union