Phillips & Sons Masonry & Construction

National Labor Relations Board - Board Decisions

Sep 30, 2002

338 N.L.R.B. 19 (N.L.R.B. 2002)

NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the E x­
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Phillips & Sons Masonry & Construction, Inc. and
Construction and General Laborers Local No.
543, affiliated with The Laborers’ International
Union of North America, AFL–CIO. Case 9–
CA–39029
September 30, 2002
DECISION AND ORDER
BY MEMBERS LIEBMAN, COWEN, AND BARTLETT
The General Counsel seeks summary judgment in this
case on the ground that the Respondent has failed to file
an answer to the complaint and compliance specification.
Upon a charge and an amended charge filed by Construc­
tion and General Laborers Local No. 543, affiliated with
the Laborers’ International Union of North America,
AFL-CIO (the Laborers Union) on January 24 and March
27, 2002, respectively, the Regional Director issued the
complaint, compliance specification, and order postpon­
ing hearing on April 19, 2002, against Phillips & Sons
Masonry & Construction, Inc., the Respondent. The
complaint and compliance specification alleges that the
Respondent has violated Section 8(a)(1) and (3) of the
Act. The Respondent failed to file an answer.
On May 17, 2002, the General Counsel filed a Motion
for Summary Judgment with the Board. On May 24,
2002, 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 Respondent 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, unless good cause
is shown. In addition, the complaint and compliance
specification affirmatively notes that unless an answer is
filed within 14 days of service, all the allegations in the
complaint will be considered admitted.
Similarly, Section 102.56(a) of the Board’s Rules and
Regulations provides that the Respondent shall file an
answer within 21 days from service of a compliance
specification. Section 102.56(c) of the Board’s Rules
and Regulations states:
If the respondent fails to file any answer to the specifi­
cation within the time prescribed by this section, the
Board may, either with or without taking evidence in
support of the allegations of the specification and with-
out further notice to the respondent, find the specifica­
tion to be true and enter such order as may be appropri­
ate.
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 Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a corporation,
has been engaged as a contractor in the construction in­
dustry doing commercial and industrial construction out
of its Orma, West Virginia facility.
During the 12-month period preceding issuance of the
complaint and compliance specification, the Respondent,
in conducting its business operations provided services
valued in excess of $50,000 for Swope Construction,
Inc., an enterprise within the State of West Virginia.
Swope Construction, Inc. has been engaged as a gen­
eral contractor in the construction industry doing com­
mercial and industrial construction out of its Bluefield,
West Virginia facility.
During the 12-month period preceding issuance of the
complaint and compliance specification, Swope Con­
struction, Inc., in conducting its business operations, pur­
chased and received at its Bluefield, West Virginia facil­
ity goods valued in excess of $50,000 directly from
points outside the State of West Virginia.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act. We also find that the Laborers Union and
the International Union of Bricklayers and Allied Craft-
workers Local No. 5, AFL–CIO (the Bricklayers Union)
are labor organizations within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times, Roger Phillips has held the posi­
tions of the Respondent’s president, job superintendent,
and principal owner, and has been a supervisor of the
Respondent within the meaning of Section 2(11) of the
Act and an agent of the Respondent within the meaning
of Section 2(13) of the Act.
The Respondent, by Roger Phillips at the Respon­
dent’s jobsite at New Man School, near Mallory, West
Virginia:
(a) On about January 18, 2002, interrogated employees
concerning whether the employees had attended a union
organization meeting, whether the employees intended to
vote for a union in any election that might be conducted,
338 NLRB No. 19
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and the identity of the employee who was the union ac­
tivist/employer organizer.
(b) On about January 18, 2002, created the impression
that employees’ union activities were under surveillance.
(c) On about January 18, 2002, threatened employees
that if they selected a union to represent them, employees
would lose their jobs.
(d) On about January 18, 2002, threatened to discharge
any employee if Phillips found out the employee was at
the union meeting.
(e) On about January 18 and 21, 2002, threatened em­
ployees that if they selected a union to represent them
they would end up taking a pay cut.
(f) On about January 22, 2002, interrogated an em­
ployee about whether he intended to vote for a union if
an election were conducted.
(g) On about January 18, 2002, orally announced to an
employee, and since then has maintained the following
rule:
No union solicitation or talking about the Union at any
time on the jobsite.
Further, on about January 18, 2002, the Respondent
discharged its employees Robert Barret and Stephen
Montoney, and on about January 23, 2002, the Respon­
dent discharged its employee Mark Richards.
The Respondent discharged employees Barret, Mon­
toney, and Richards because they supported, or assisted
the Laborers Union or the Bricklayers Union and en-
gaged in union or concerted activities, and to discourage
employees from engaging in these activities.
CONCLUSION OF LAW
The Respondent has interfered with, restrained, and
coerced employees in the exercise of the rights guaran­
teed in Section 7 of the Act, in violation of Section
8(a)(1) of the Act, by interrogating and threatening em­
ployees, creating the impression of surveillance, and an­
nouncing and implementing the no solicitation/no talking
rule set forth above. In addition, by discharging employ­
ees Barret, Montoney, and Richards, the Respondent has
discriminated in regard to the hire or tenure or terms and
conditions of employment of its employees, thereby dis­
couraging membership in a labor organization, in viola­
tion of Section 8(a)(1) and (3) of the Act. The Respon­
dent’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 Section 8(a)(1)
and (3) by discharging Stephen Montoney and Mark
Richards, we shall order the Respondent to make them
whole by paying them the amounts set forth in the com­
pliance specification, with interest as prescribed in New
Horizons for the Retarded, 283 NLRB 1173 (1987).1
ORDER
The National Labor Relations Board orders that the
Respondent, Phillips & Sons Masonry & Construction,
Inc., Orma, West Virginia, its officers, agents, succes­
sors, and assigns, shall
1. Cease and desist from
(a) Interrogating employees concerning whether the
employees had attended a union organization meeting,
whether the employees intended to vote for a union in
any election that might be conducted, and the identity of
the employee who was the union activist/employee or­
ganizer.
(b) Creating the impression that employees’ union ac­
tivities were under surveillance.
(c) Threatening employees that if they selected a union
to represent them employees would lose their jobs.
(d) Threatening to discharge any employee if the Re­
spondent found out the employee was at a union meeting.
(e) Threatening employees that if they selected a union
to represent them they would end up taking a pay cut.
(f) Announcing and maintaining a rule forbidding un­
ion solicitation or talking about the union at any time on
the jobsite.
(g) Discharging employees in retaliation for their un­
ion or protected concerted activities.
(h) In any like or related manner interfering with, re-
straining, or coercing employees in the exe rcise 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) Make Stephen Montoney and Mark Richards whole
by paying them the amounts set forth below, plus interest
as prescribed in New Horizons for the Retarded, 283
NLRB 1173 (1987), minus tax withholdings required by
Federal and State laws:
1 The General Counsel does not seek a make-whole remedy for dis­
charged employee Robert Barret. Accordingly, he is not included in
the backpay amounts set forth in the compliance specification. Neither
does the General Counsel seek a reinstatement order for the discharged
employees. Accordingly, our Order does not include backpay for Bar­
ret or a reinstatement remedy.
PHILLIPS & SONS MASONRY & CONSTRUCTION 3
Stephen Montoney $1,296.12
Mark Richards 527.10
TOTAL: $1,823.22
(b) Within 14 days after service by the Region, post at
its facility in Orma, West Virginia, copies of the attached
notice marked “Appendix.”2 Copies of the notice, on
forms provided by the Regional Director for Region 9,
after being signed by the Respondent’s authorized repre­
sentative, shall be posted by the Respondent and main­
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus­
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced or covered by any other material. In the event
that, during the pendency of these proceedings, the Re­
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du­
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since January 18, 2002.
(c) 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.
Dated, Washington, D.C. September 30, 2002
Wilma B. Liebman, Member
William B. Cowen, Member
Michael J. Bartlett, 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

2 If this Order is enforced by a judgment of a United St ates 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.”
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
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 interrogate employees concerning
whether the employees had attended a union organization
meeting, whether the employees intended to vote for a
union in any election that might be conducted, and the
identity of the employee who was the union activ­
ist/employee organizer.
WE WILL NOT create the impression that employees’
union activities were under surveillance.
WE WILL NOT threaten employees that if they selected a
union to represent them employees would lose their jobs.
WE WILL NOT threaten to discharge any employee if we
found out the employee was at a union meeting.
WE WILL NOT threaten employees that if they selected a
union to represent them they would end up taking a pay
cut.
WE WILL NOT announce and maintain a rule forbidding
union solicitation or talking about the union at any time
on the jobsite.
WE WILL NOT discharge employees in retaliation for
their union or protected concerted 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 make Stephen Montoney and Mark Richards
whole by paying them the amounts set forth below, plus
interest and minus required tax withholdings:
Stephen Montoney $1,296.12
Mark Richards 527.10
TOTAL: $1,823.22
PHILLIPS & SONS MASONRY & CONSTRUCTION,
INC.