Sciarretti Asphalt Paving Co.

National Labor Relations Board - Board Decisions

Apr 21, 2004

341 N.L.R.B. 83 (N.L.R.B. 2004)

NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
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.
Sciarretti Asphalt Paving Company and Thomas B.
Williams. Case 6–CA–33749
April 21, 2004
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS WALSH
AND MEISBURG
The General Counsel seeks a default judgment in this
case on the ground that the Respondent has failed to file
an answer to the complaint. Upon a charge filed on Oc-
tober 31, 2003, the General Counsel issued the complaint
on January 28, 2004, against Sciarretti Asphalt Paving
Company, the Respondent, alleging that it has violated
Section 8(a)(1) and (3) of the Act. The Respondent
failed to file an answer.
On March 15, 2004, the General Counsel filed a Mo-
tion for Default Judgment with the Board. On March 19,
2004, 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.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Default Judgment
Section 102.20 of the Board’s Rules and Regulations
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. In addition, the complaint affirmatively stated
that unless an answer was filed by February 11, 2004, all
the allegations in the complaint would be considered
admitted. Further, the undisputed allegations in the Gen-
eral Counsel’s motion disclose that the Region, by letter
dated February 20, 2004, notified the Respondent that
unless an answer was received by the close of business
on the third business day following receipt of the letter, a
motion for default judgment would be filed.
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 Default Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a Pennsylvania
corporation with its corporate offices and principal place
of business in Braddock, Pennsylvania, has been engaged
in the performance of paving services within the con-
struction industry.
During the 12-month period ending September 30,
2003, the Respondent, in conducting its business opera-
tions described above, provided services valued in excess
of $50,000 for businesses within the Commonwealth of
Pennsylvania that are themselves directly engaged in
interstate commerce. 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 International
Union of Operating Engineers, Local 66, 66A, B, C, D,
O & R, AFL–CIO (the Union), is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times, the following individuals held
the positions set forth opposite their respective names
and have been supervisors of the Respondent within the
meaning of Section 2(11) of the Act and agents of the
Respondent within the meaning of Section 2(13) of the
Act:

Susan Sciarretti - President
Chris Sciarretti - Superintendent

On or about October 27, 2003, the Respondent termi-
nated the employment of its employee Thomas B. Wil-
liams, and since said date has failed and refused to em-
ploy him. The Respondent engaged in this conduct be-
cause Williams formed, joined, and assisted the Union
and engaged in concerted activities, and to discourage
employees from engaging in these activities.
CONCLUSION OF LAW
By the conduct described above, 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 the Union in violation of Sec-
tion 8(a)(3) and (1) of the Act. The Respondent’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)(3)
and (1) by terminating and refusing to employ Thomas
B. Williams, we shall order the Respondent to offer Wil-
liams 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. We also shall order the
341 NLRB No. 83
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2
Respondent to make Williams 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, 273 NLRB 1173 (1987). The Respondent
also shall be required to remove from its files any refer-
ence to the termination and the refusal to employ Wil-
liams, and to notify him in writing that this has been
done and that the unlawful conduct will not be used
against him in any way.
ORDER
The National Labor Relations Board orders that the
Respondent, Sciarretti Asphalt Paving Company, Brad-
dock, Pennsylvania, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Terminating, refusing to employ, or otherwise dis-
criminating against employees because they join or assist
International Union of Operating Engineers, Local 66,
66A, B, C, D, O & R, AFL–CIO, or any other labor or-
ganization, and engage in protected concerted activities,
or to discourage employees from engaging in such activi-
ties.
(b) 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) Within 14 days from the date of this Order, offer
Thomas B. Williams full reinstatement to his former job
or, if that job no longer exists, to a substantially equiva-
lent position, without prejudice to his seniority or any
other rights or privileges previously enjoyed.
(b) Make Thomas B. Williams whole for any loss of
earnings and other benefits suffered as a result of the
unlawful termination and refusal to employ him, in the
manner set forth in the remedy section of this decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful termination of
Thomas B. Williams and refusal to employ him, and
within 3 days thereafter, notify him in writing that this
has been done and that the unlawful conduct will not be
used against him in any way.
(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records including an elec-
tronic copy of such records if stored in electronic form,
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 Braddock, Pennsylvania, copies of the at-
tached notice marked “Appendix.”1 Copies of the notice,
on forms provided by the Regional Director for Region
6, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent 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 notices are not al-
tered, 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 facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current and former employees employed by the
Respondent at any time since October 27, 2003.
(f) 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. April 21, 2004

Robert J. Battista, Chairman

Dennis P. Walsh, Member

Ronald Meisburg, 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

1 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 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.”

SCIARRETTI ASPHALT PAVING CO. 3
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 any 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 terminate, refuse to employ, or otherwise
discriminate against our employees because they join or
assist the International Union of Operating Engineers,
Local 66, 66A, B, C, D, O & R, AFL–CIO, or any other
labor organization, and engage in protected concerted
activities, or to discourage employees from engaging in
such 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 Thomas B. Williams full reinstatement to his
former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to his senior-
ity or any other rights or privileges previously enjoyed.
WE WILL make Thomas B. Williams whole for any loss
of earnings and other benefits suffered as a result of the
unlawful termination and refusal to employ him, with
interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful termination of Thomas B. Williams and refusal to
employ him, and WE WILL, within 3 days thereafter, no-
tify him in writing that this has been done and that the
unlawful conduct will not be used against him in any
way.

SCIARRETTI ASPHALT PAVING COMPANY