Robert A. Sullivan Construction Co., Inc.

National Labor Relations Board - Board Decisions

Jan 25, 1979

240 N.L.R.B. 227 (N.L.R.B. 1979)

ROE, RT A. SULLIVAN CONSTRUCTION CO., INC. 227
Robert A. Sullivan Construction Co., Inc. and Bro-
ward County Carpenters District Council. Case 12
CA-8222
January 25, 1979
DECISION AND ORDER
By CHAIRMAN FANNING AND MEMBERS JENKINS
AND M RPHIY
Upon a charge filed on June 5, 1978. by Broward
County Carpenters District Council, herein called
the Union. and duly served on Robert A. Sullivan
Construction Co., Inc., herein called Respondent, the
General Counsel of the National Labor Relations
Board, by the Regional Director for Region 12, is-
sued a complaint and notice of hearing on July 10,
1978, against Respondent, alleging that Respondent
had engaged in and was engaging in unfair labor
practices affecting commerce within the meaning of
Section 8(a)(3) and (1) and Section 2(6) and (7) of the
National Labor Relations Act, as amended. Copies
of the charge, complaint, and notice of hearing be-
fore an Administrative Law Judge were duly served
on the parties to this proceeding.
With respect to the unfair labor practices, the com-
plaint alleges in substance that on or about January
12, 1978, Respondent discharged six employees, and
thereafter filed and refused to recall them until on or
about January 18, 1978. because of their membership
in and activities on behalf of the Union. Respondent
failed to file an answer to the complaint.
On October 25, 1978, counsel for the General
Counsel filed directly with the Board a motion to
transfer case to Board and for Summary Judgment.
Subsequently, on November 6, 1978, the Board is-
sued an order transferring the proceeding to the
Board and a Notice To Show Cause why the General
Counsel's Motion for Summary Judgment should not
be granted. Respondent failed to file a response to
Notice To Show Cause.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
Upon the entire record in this proceeding. the
Board makes the following:
Ruling on the Motion for Summary Judgment
Section 102.20 of the Board's Rules and Regula-
tions, Series 8, as amended, provides as follows:
The respondent shall, within 10 days from the
service of the complaint, file an answer thereto.
240 NLRB No. 37
The respondent shall specifically admit. deny. or
explain each of the facts alleged in the com-
plaint, unless the respondent is without knowl-
edge. in which case the respondent shall so state.
such statement operating as a denial. All the
allegations in the complaint, if no answer is
filed, or any allegation in the complaint not spe-
cifically denied or explained in an answer filed.
unless the respondent shall state in the answer
he is without knowledge, shall be deemed to be
admitted to be true and shall be so found by the
Board, unless good cause to the contrar is
shown.
The complaint and notice of hearing served on Re-
spondent' herein specifically states that unless an
answer to the complaint is filed within 10 days of
service thereof "all of the allegations contained in the
Complaint shall be deemed to be admitted to be true
and may be so found by the Board." According to
the uncontroverted allegations of the Motion for
Simmary Judgment, a letter dated July 31, 1978, was
sent to Respondent's designated attorney stating that
an answer had not been received and, if no answer
was filed, counsel for the General Counsel would
move for Summary Judgment. By letter dated Au-
gust 2. 1978, counsel for the General Counsel was
informed by the named attorney that his client, the
Respondent, had not authorized him to accept any
pleadings or enter an appearance. As noted, Respon-
dent did not file an answer to the complaint or a
response to the Notice to Show Cause.
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 complaint are
deemed admitted and are found to be true and we
grant the Motion for Summary Judgment.
On the basis of the entire record, the Board makes
the following:
FIN,)DIN(S OF Fc
I. I F BUSINESS OF RESPONDENT
Robert A. Sullivan Construction Co., Inc., at all
times material herein, has been a Florida corporation
with its principal place of business located in Fort
Lauderdale, Florida, where it is engaged in carpentry
contracting. During the past year. Respondent, in the
course and conduct of its business operations. fur-
[ Accordirll to the uncontro,erted ailceation .)f Ihe M1olltn for Summnlr\
Judlment Rpondent .oa ered a. cpr ,If the Iomplainl h_ registered
m;ail n .tactrdance ith Rule 102 1 I I of the Bl.rd' Rule, and Regulations.
Series . .a, Ilmended. and Sec 1 04 of the ALt A copn of the complaint
anoi ., i hand-dehl ered to the hnel of Re pondenlt' prcident and direc-
tr. Rhert X Sullis.n, and u .ii AceptCd h .Al Adult
228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nished services valued in excess of $50,000 to C(om-
panelli, Inc., a Massachusetts corporation licensed to
do business in the State of Florida. which Employer,
in turn, meets a direct jurisdictional standard of the
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.
II. THE LABOR OR(;ANIZAION INVOLVED
Broward County Carpenters District Council is.
and has been at all times material herein, a labor
organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
On or about January 12, 1978, Respondent dis-
charged its employees Richard Caspanello, Benito
Vellon, John Billington, Seaborn Fowler, John Mad-
erios, and Dennis Kamper, and failed and refused to
reinstate said employees to their former or substan-
tially equivalent positions of employment until on or
about January 18, 1978, because said employees
joined and assisted the Union and engaged in other
concerted activity for the purposes of collective bar-
gaining and other mutual aid or protection. There-
fore, we find that Respondent has interfered with,
restrained, and coerced its employees in the exercise
of rights guaranteed them under Section 7 of the Act,
and has discriminated in regard to the hire and ten-
ure or terms and conditions of employment of its
employees, and, by such conduct, Respondent has
engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(3) and (1) of the
Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRA('TIES I. P()N
COMMERCE
The activities of Respondent set forth in section
III above, have a close, intimate, and substantial re-
lationship to trade, traffic, and commerce among the
several States and tend to lead to labor disputes bur-
dening and obstructing commerce and the free flow
of commerce.
V. THE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the mean-
ing of Section 8(a)(3) and (1) of the Act, we shall
order that it cease and desist therefrom and take cer-
tain affirmative action designed to effectuate the pol-
icies of the Act.
We have found that Respondent committed unfair
labor practices by interfering with the rights guaran-
teed employees by Section 7 of the Act, and we shall
order it to cease and desist therefrom in any other
manner.
We have found that Respondent discriminatorily
discharged and failed and refused to reinstate its em-
ployees, Richard Caspanello, Benito Vellon, John
Billington. Seaborn Fowler, John Maderios, and
Dennis Kamper, to their former or substantially
equivalent positions until on or about January 18,
1978, and we shall order that Respondent make said
employees whole for any loss of pay suffered because
of the discrimination against them. Backpay shall be
based upon the earnings they normally would have
received from the date of their discharge to the date
Respondent reinstated them, January 18, 1978, less
net earnings during such period. Backpay and inter-
est thereon is to be computed in accordance with the
formulas used in F. W. Woolworth Company, 90
NLRB 289 (1950), and Florida Steel Corporation, 231
NLRB 651 (1977). 2
In view of the fact that Respondent has ceased
doing business at its Fort Lauderdale, Florida, ad-
dress, we shall also order that Respondent mail cop-
ies of the notice, marked "Appendix," to the Union
and all employees employed by it during 1978 at
their last known address and, if Respondent has rees-
tablished or does reopen its business at any location,
it shall also post the notice there.
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
I. Robert A. Sullivan Construction Co., Inc., is an
employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. Broward County Carpenters District Council is
a labor organization within the meaning of Section
2(5) of the Act.
3. Respondent, by discharging Richard Caspanel-
lo. Benito Vellon, John Billington, Seaborn Fowler,
John Maderios, and Dennis Kamper because of their
union activities has engaged in unfair labor practices
within the meaning of Section 8(a)(3) and (I) of the
Act.
4. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
: See. generall. i, Pnhtri, & Ifeann ( . 138 NI.RB 716 11962)
ROBERT A. SULLIVAN CONSTRUCTION CO., INC. 229
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,
Robert A. Sullivan Construction Co., Inc., Fort Lau-
derdale, Florida, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in, or activities on
behalf of, Broward County Carpenters District
Council, or any other labor organization, by discrim-
inatorily discharging or terminating employees, or b
otherwise discriminating in regard to the hire or ten-
ure of their employees because they joined or assisted
the above-named Union, or engaged in other con-
certed activity for the purposes of collective bargain-
ing or mutual aid and protection.
(b) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of their
rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Make whole employees Richard Caspanello.
Benito Vellon, John Billington, Seaborn Fowler,
John Maderios, and Dennis Kamper for any loss of
earnings they may have suffered by reason of the
unlawful action taken against them, in the manner
set forth in the section of this Decision entitled "The
Remedy."
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
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.
(c) Mail to the Union and all employees employed
by it during 1978 copies of the attached notice
marked "Appendix" and if Respondent reestab-
lishes or reopens its business post copies of the notice
there. Copies of said notice, on forms provided by
the Regional Director for Region 12, after being duly
signed by Respondent's representative, shall be
mailed and posted by Respondent immediately upon
receipt thereof, and if posted be maintained by it for
60 consecutive days thereafter, in conspicuous
places, including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notices are
not altered, defaced, or covered by any other mate-
rial.
(d) Notify the Regional Director for Region 12, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
In the eent that thi, Order enforced b5 .a judgernent of a nited
State ( urt of A.ppeals the ,ordl n the notice reading "Posted h Order
of he Ntiln;al I.lhor Relallons Board" shall read "Posted Pursuant to a
Judgment of the Lnnted States Court of Appeails nf.rcln ain Order of the
'silalOll l labor Relations Board "
APPENDIX
NoF(ict To EMPLOYEES
Pos it) Bs ORDER O f I
NAIIONAI LBOR REL ATIONS BO\RI)
An Agency of the United States Government
Wl. wll.l Nso discharge employees or otherwise
discriminate against them with respect to their
tenure of employment or any term or condition
of employment because of their membership in,
support of, or activities on behalf of Broward
County Carpenters District Council, or any
other labor organization.
WE W11.1 NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of the rights guaranteed them by Sec-
tion 7 of the Act.
WF wii.l make employees Richard Caspanel-
lo, Benito Vellon, John Billington, Seaborn
Fowler. John Maderios, and Dennis Kamper
whole for any loss they may have suffered by
reason of the unlawful action taken against
them, with interest.
ROBERT A S I.LIV N CONSI-Rt:( I O Co IN(