RMK Construction

National Labor Relations Board - Board Decisions

May 12, 1997

323 N.L.R.B. 126 (N.L.R.B. 1997)

1
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.
Cornerstone Affiliates, Inc. d/b/a RMK Construc­
tion and Southern California Conference of
Carpenters. Case 21–CA–31019
May 12, 1997
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX AND
HIGGINS
Upon a charge and an amended charge filed by the
Union on November 20, 1995, and July 5, 1996, re­
spectively, the General Counsel of the National Labor
Relations Board issued a complaint on July 12, 1996,
against Cornerstone Affiliates, Inc. d/b/a RMK Con­
struction, the Respondent, alleging that it has violated
Section 8(a)(1) and (3) of the National Labor Relations
Act. On September 19, 1996, the Respondent filed an
answer to the complaint.
Thereafter, on December 11, 1996, the Regional Di­
rector for Region 21 approved an informal settlement
agreement executed by the parties. However, by letter
dated January 21, 1997, the Regional Director with-
drew approval of the settlement on the ground that the
Respondent had failed to comply with its terms. There-
after, on February 5, 1997, the Regional Director is-
sued an amended complaint realleging the allegations
contained in the original complaint.
Although properly served copies of the charge,
amended charge, and amended complaint, the Re­
spondent failed to file an answer to the amended com­
plaint. Accordingly, on April 22, 1997, the General
Counsel filed a Motion for Summary Judgment with
the Board. On April 23, 1997, 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 allega­
tions 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, un­
less good cause is shown. In addition, the amended
complaint affirmatively notes that unless an answer is
filed within 14 days of service, all the allegations in
the amended complaint will be considered admitted.
Further, the undisputed allegations in the Motion for
Summary Judgment disclose that the Region, by letter
dated April 2, 1997, notified the Respondent that un­
less an answer were received by April 9, 1997, a Mo­
tion for Summary Judgment would be filed. Neverthe­
less, the Respondent failed to file an answer to the
amended complaint.
Although the Respondent did file an answer to the
July 12, 1996 complaint, that answer was subsequently
withdrawn by the explicit terms of the settlement
agreement,1 and was not thereby revived by the Re­
gional Director’s letter withdrawing approval of the
settlement agreement. Thus, the Respondent’s answer
to the original complaint does not remain extant, and
does not preclude summary judgment.2
Accordingly, 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, the Respondent, a California
corporation, with its principal offices located at 120A
South San Antonio Avenue, Ontario, California, has
been engaged in the business of nonretail metal stud
framing and drywall installation in the construction in­
dustry. During the 12-month period ending July 12,
1996, the Respondent, in conducting its operations de-
scribed above, provided services valued in excess of
$50,000 directly to customers, including Cal Pac Con­
struction, Inc., located within the State of California,
each of which customers, in turn, within the same time
period, purchased and received at its California loca­
tions goods valued in excess of $50,000 directly from
points outside the State of California.
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 organi­
zation within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
About November 5, 1995, the Respondent dis­
charged employee Dave Brake. The discharge was re­
scinded the next day, November 6, 1995. However,
about November 9, 1995, the Respondent laid off
Brake for 1 day, and about November 14, 1995, again
discharged Brake.
The Respondent engaged in the conduct described
above because Brake joined or assisted the Union and
engaged in concerted activities, and to discourage em­
ployees from engaging in these activities.
1 NLRB Form 4775, the settlement form used here, expressly pro­
vides that approval of the agreement by the Regional Director ‘‘shall
constitute withdrawal of any Complaint(s) and Notice of Hearing
heretofore issued in this case, as well as any answer(s) filed in re­
sponse.’’
2 See Signage Systems, 312 NLRB 1115 (1993); Orange Data,
Inc., 274 NLRB 1018 (1985); and Ofalco Properties, 281 NLRB 84
(1986).
323 NLRB No. 126
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
CONCLUSION OF LAW
By the acts and conduct described above, the Re­
spondent has been discriminating in regard to the hire,
or tenure, or terms, or conditions of employment of its
employees, thereby discouraging membership in a
labor organization, and has thereby engaged in unfair
labor practices affecting 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 de-
signed to effectuate the policies of the Act. Specifi­
cally, having found that the Respondent has violated
Section 8(a)(3) and (1) by laying off and discharging
Dave Brake, we shall order the Respondent to offer
Brake full reinstatement to his former job or, if that
job no longer exists, to a substantially equivalent posi­
tion, without prejudice to his seniority or any other
rights or privileges previously enjoyed, and to make
him whole for any loss of earnings and other benefits
suffered as a result of the discrimination against him.
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 re­
quired to remove from its files any and all references
to the unlawful layoff and discharges, and to notify the
discriminatee in writing that this has been done.
ORDER
The National Labor Relations Board orders that the
Respondent, Cornerstone Affiliates, Inc. d/b/a RMK
Construction, Ontario, California, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Laying off, discharging, or otherwise discrimi­
nating against employees because of their union or
concerted activities.
(b) In any like or related manner interfering with,
restraining, 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
Dave Brake full reinstatement to his former job or, if
that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other
rights or privileges previously enjoyed.
(b) Make Dave Brake whole for any loss of earnings
and other benefits suffered as a result of the discrimi­
nation against him, 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 any reference to the unlawful lay-
off and discharges, and within 3 days thereafter notify
Dave Brake in writing that this has been done and that
the layoff and discharges will not be used against him
in any way.
(d) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination
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.
(e) Within 14 days after service by the Region, post
at its facility in Ontario, California, copies of the at­
tached notice marked ‘‘Appendix.’’3 Copies of the no­
tice, on forms provided by the Regional Director for
Region 21, 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 November 20, 1995.
(f) 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. May 12, 1997
������������������
William B. Gould IV, Chairman
������������������
Sarah M. Fox, Member
������������������
John E. Higgins, Jr., 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.’’
RMK CONSTRUCTION 3
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.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representative
of their on choosing
To act together for other mutual aid or protec­
tion
To choose not to engage in any of these pro­
tected concerted activities
WE WILL NOT lay off, discharge, or otherwise dis­
criminate against employees because they engage in
union or 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, within 14 days from the date of the
Board’s Order, offer Dave Brake full reinstatement to
his former job or, if that job no longer exists, to a sub­
stantially equivalent position, without prejudice to his
seniority or any other rights or privileges previously
enjoyed.
WE WILL make Dave Brake whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against him, with interest.
WE WILL, within 14 days from the date of the
Board’s Order, remove from our files any reference to
the unlawful layoff and discharges of Dave Brake, and
WE WILL, within 3 days thereafter, notify him in writ­
ing that this has been done and that the layoff and dis­
charges will not be used against him in any way.
CORNERSTONE AFFILIATES, INC. D/B/A
RMK CONSTRUCTION