Pre-Fabricated Steel

National Labor Relations Board - Board Decisions

Dec 23, 1996

322 N.L.R.B. 126 (N.L.R.B. 1996)

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NOTICE: This opinion is subject to formal revision before publication
in the Board volumes of NLRB decisions. Readers are requested to
notify the Executive Secretary, National Labor Relations Board,
Washington, D.C. 20570, of any typographical or other formal er­
rors so that corrections can be included in the bound volumes.
Pre-Fabricated Steel Consultants, Inc. and Ironmen
Construction, Inc., a Single Employer and
Robin Scott and Ironworkers Local No. 10.
Cases 17–CA–18489 and 17–CA–18655
December 23, 1996
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND FOX
Upon a charge and amended charge filed by Robin
Scott, an individual, on March 6 and May 31, 1996,
and a charge and amended charge filed by the Union
on May 30 and July 25, 1996, the General Counsel of
the National Labor Relations Board issued a consoli­
dated complaint (complaint) on July 31, 1996, against
Pre-Fabricated Steel Consultants, Inc. and Ironmen
Construction, Inc., a single employer, 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 charges, amended charges and
complaint,1 the Respondent failed to file an answer.
On November 19, 1996, the General Counsel filed
a Motion for Summary Judgment with the Board. On
November 21, 1996, the Board issued an order trans­
ferring 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 delegated
its authority in this proceeding to a three-member
panel.
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, un­
less good cause is shown. In addition, the complaint
affirmatively notes that unless an answer is filed within
14 days of service, all the allegations in the complaint
will be considered admitted.2
1 Although the General Counsel’s motion indicates the consoli­
dated complaint was served by certified mail but was returned to the
Regional Office unclaimed, failure or refusal to accept service can-
not defeat the purposes of the Act. See, e.g., Michigan Expediting
Service, 282 NLRB 210 fn. 6 (1986). Therefore, we find that the Re­
spondent was properly served the consolidated complaint.
2 No further reminder or warning of the consequences of failing
to file an answer was sent or given to the Respondent, but this does
not warrant denial of the motion. See, e.g., Superior Industries, 289
NLRB 834, 835 fn. 13 (1988).
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 following
FINDINGS OF FACT
I. JURISDICTION
At all material times, Pre-Fabricated Steel Consult-
ants, Inc. (PSC), a Missouri corporation with an office
and place of business in Blue Springs, Missouri, has
been engaged as a construction contractor. At all mate-
rial times, Ironmen Construction, Inc. (Ironmen), a
Missouri corporation with an office and place of busi­
ness in Blue Springs, Missouri, has been engaged in
the erection of metal buildings as a construction con-
tractor. At all material times, PSC and Ironmen have
been affiliated business enterprises with common offi­
cers, ownership, directors, management, and super-
vision; have formulated and administered a common
labor policy; have shared common premises, facilities,
and tools and equipment; have provided services for
and made sales to each other; have interchanged per­
sonnel with each other; and have held themselves out
to the public as single-integrated business enterprises.
PSC and Ironmen constitute a single-integrated busi­
ness enterprise and a single employer within the mean­
ing of the Act.
During the 12-month period ending May 2, 1996,
the Respondent, in conducting its business operations,
purchased and received at its facility and jobsites with-
in the State of Missouri goods and services valued in
excess of $50,000 directly from points outside the
State of Missouri. 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.
II. ALLEGED UNFAIR LABOR PRACTICES
About late January and the week ending February
18, and on February 6, 1996, the Respondent interro­
gated employees about their support for or activities on
behalf of the Union.
About February 21, 1996, the Respondent threatened
employees with loss of employment if they joined or
supported the Union.
About February 7, 1996, the Respondent informed
employees that they were losing benefits or privileges
because of their activities on behalf of or sympathies
toward the Union or their relationships to other em­
ployees who supported the Union.
About February 7, 1996, the Respondent withdrew
from employee Robin Scott the employee benefit of
using the Respondent’s truck to drive to and from
work. About February 18, 1996, the Respondent dis­
charged employee Robin Scott. Around March or April
322 NLRB No. 126
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1996, the Respondent laid off employees Cliff Sharp,
Rob Francis, Paul Allison, Scottie Smith, and Joe
Humphrey Sr. and subcontracted to a third party the
work of these employees. The Respondent engaged in
this conduct because the employees named above
joined or assisted the Union and engaged in concerted
activities, and to discourage employees from engaging
in these activities.
CONCLUSION OF LAW
By the acts and conduct described above, the Re­
spondent has been interfering with, restraining, and co­
ercing employees in the exercise of the rights guaran­
teed in Section 7 of the Act, and has thereby engaged
in unfair labor practices affecting commerce within the
meaning of Section 8(a)(1) and Section 2(6) and (7) of
the Act. By withdrawing benefits, discharging or lay­
ing off the employees named above, and subcontract­
ing the work of the laid-off employees, the Respondent
has also been discriminating in regard to the hire or
tenure or terms or conditions of employment of its em­
ployees, thereby discouraging membership in a labor
organization, and has also thereby engaged in unfair
labor practices affecting commerce within the meaning
of Section 8(a)(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 de-
signed to effectuate the policies of the Act. Specifi­
cally, having found that the Respondent violated Sec­
tion 8(a)(3) and (1) by withdrawing from employee
Robin Scott the benefit of using the Respondent’s
truck to drive to and from work, we shall order the
Respondent to restore that benefit and to make Scott
whole, with interest as prescribed in New Horizons for
the Retarded, 283 NLRB 1173 (1987), for the loss of
that benefit since February 7, 1996.
Furthermore, having found that the Respondent has
violated Section 8(a)(3) and (1) by discharging Robin
Scott and laying off Cliff Sharp, Rob Francis, Paul Al­
lison, Scottie Smith, and Joe Humphrey Sr. and sub-
contracting to a third party the work of these laid-off
employees, we shall order the Respondent to offer the
discriminatee immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to sub­
stantially equivalent positions, without prejudice to
their seniority or any other rights or privileges pre­
viously enjoyed, and to make them whole for any loss
of earnings and other benefits suffered as a result of
the discrimination against them. Backpay shall be com­
puted in accordance with F. W. Woolworth Co., 90
NLRB 289 (1950), with interest as prescribed in New
Horizons for the Retarded, supra. The Respondent
shall also be required to expunge from its files any and
all references to the unlawful discharge or layoffs, and
to notify the discriminatees in writing that this has
been done.
ORDER
The National Labor Relations Board orders that the
Respondent, Pre-Fabricated Steel Consultants, Inc. and
Ironmen Construction, Inc., a single employer, Blue
Springs, Missouri, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Interrogating employees about their support for
or activities on behalf of Ironworkers Local No. 10.
(b) Threatening employees with loss of employment
if they join or support the Union.
(c) Informing employees that they are losing bene­
fits or privileges because of their activities on behalf
of or sympathies toward the Union or their relation-
ships to other employees who support the Union.
(d) Withdrawing benefits, discharging or laying off
employees, and subcontracting their work to a third
party because the employees join or assist the Union
or engage in concerted activities, or to discourage em­
ployees from engaging in these activities.
(e) 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) Restore to Robin Scott the benefit of using the
Respondent’s truck to drive to and from work.
(b) Make Robin Scott whole, with interest, for the
loss of the use of the Respondent’s truck to drive to
and from work since February 7, 1996, in the manner
set forth in the remedy section of this decision.
(c) Within 14 days from the date of this Order, offer
Robin Scott, Cliff Sharp, Rob Francis, Paul Allison,
Scottie Smith, and Joe Humphrey Sr. full reinstatement
to their former jobs or, if those jobs no longer exist,
to substantially equivalent positions, without prejudice
to their seniority or any other rights or privileges pre­
viously enjoyed.
(d) Make Robin Scott, Cliff Sharp, Rob Francis,
Paul Allison, Scottie Smith, and Joe Humphrey Sr.
whole for any loss of earnings and other benefits suf­
fered as a result of the discrimination against them, in
the manner set forth in the remedy section of this deci­
sion.
(e) Within 14 days from the date of this Order, ex­
punge from its files any and all references to the un­
lawful discharge or layoffs of Robin Scott, Cliff Sharp,
Rob Francis, Paul Allison, Scottie Smith, and Joe
Humphrey Sr., and, within 3 days thereafter, notify the
discriminatees in writing that this has been done.
(f) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination
PRE-FABRICATED STEEL CONSULTANTS, INC. 3
and copying, all payroll records, social security pay­
ment records, timecards, personnel records and reports,
and all other records necessary to analyze the amount
of backpay due under the terms of this Order.
(f) Within 14 days after service by the Region, post
at its facility in Blue Springs, Missouri, copies of the
attached notice marked ‘‘Appendix.’’3 Copies of the
notice, on forms provided by the Regional Director for
Region 17, after being signed by the Respondent’s au­
thorized representative, shall be posted by the Re­
spondent 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 no­
tices are not altered, 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 facility involved in these pro­
ceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current
employees and former employees employed by the Re­
spondent at any time since March 6, 1996.
(g) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a
responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to
comply.
Dated, Washington, D.C. December 23, 1996
������������������
William B. Gould IV, Chairman
������������������
Margaret A. Browning, Member
������������������
Sarah M. Fox, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
3 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
National 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.’’
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 or­
dered us to post and abide by this notice.
WE WILL NOT interrogate employees about their sup-
port for or activities on behalf of Ironworkers Local
No. 10.
WE WILL NOT threaten employees with loss of em­
ployment if they join or support the Union.
WE WILL NOT inform employees that they are losing
benefits or privileges because of their activities on be-
half of or sympathies toward the Union or their rela­
tionships to other employees who support the Union.
WE WILL NOT withdraw benefits, discharge or lay
off employees, and subcontract their work to a third
party because the employees join or assist the Union
or engage in concerted activities, or to discourage em­
ployees from engaging in these 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 restore to Robin Scott the benefit of using
our truck to drive to and from work.
WE WILL make Robin Scott whole, with interest for
the loss of the use of our truck to drive to and from
work since February 7, 1996.
WE WILL, within 14 days from the date of the
Board’s Order, offer Robin Scott, Cliff Sharp, Rob
Francis, Paul Allison, Scottie Smith, and Joe Hum­
phrey Sr. full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed.
WE WILL make Robin Scott, Cliff Sharp, Rob
Francis, Paul Allison, Scottie Smith, and Joe Hum­
phrey Sr. whole for any loss of earnings and other
benefits suffered as a result of our discrimination
against them.
WE WILL, within 14 days from the date of the
Board’s Order, expunge from our files any and all ref­
erences to the unlawful discharge or layoffs of Robin
Scott, Cliff Sharp, Rob Francis, Paul Allison, Scottie
Smith, and Joe Humphrey Sr., and, within 3 days
thereafter, notify them in writing that this has been
done.
PRE-FABRICATED STEEL CONSULTANTS,
INC. AND IRONMEN CONSTRUCTION,
INC., A SINGLE EMPLOYER

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 interrogate employees about their support for or activities on behalf of IRON-
WORKERS LOCAL NO. 10.
WE WILL NOT threaten employees with loss of employment if they join or support the Union.
WE WILL NOT inform employees that they are losing benefits or privileges because of their activities
on behalf of or sympathies toward the Union or their relationships to other employees who support
the Union.
WE WILL NOT withdraw benefits, discharge or lay off employees, and subcontract their work to a
third party because the employees join or assist the Union or engage in concerted activities, or to
discourage employees from engaging in these 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 restore to ROBIN SCOTT the benefit of using our truck to drive to and from work.
WE WILL make ROBIN SCOTT whole, with interest for the loss of the use of our truck to drive to
and from work since February 7, 1996.
WE WILL, within 14 days from the date of the Board’s Order, offer ROBIN SCOTT, CLIFF SHARP,
ROB FRANCIS, PAUL ALLISON, SCOTTIE SMITH, and JOE HUMPHREY SR. full reinstatement to
their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without preju­
dice to their seniority or any other rights or privileges previously enjoyed.
WE WILL make ROBIN SCOTT, CLIFF SHARP, ROB FRANCIS, PAUL ALLISON, SCOTTIE SMITH,
and JOE HUMPHREY SR. whole for any loss of earnings and other benefits suffered as a result
of our discrimination against them.
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WE WILL, within 14 days from the date of the Board’s Order, expunge from our files any and all
references to the unlawful discharge or layoffs of ROBIN SCOTT, CLIFF SHARP, ROB FRANCIS,
PAUL ALLISON, SCOTTIE SMITH, and JOE HUMPHREY SR., and, within 3 days thereafter, notify
them in writing that this has been done.
PRE-FABRICATED STEEL CONSULTANTS, INC.
AND IRONMEN CONSTRUCTION, INC., A
SINGLE EMPLOYER
(Employer)
Dated By
(Representative) (Title)
8600 Farley Street, Suite 100, Overland Park, Kansas 66212-4677, Telephone 913–236–3005.
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