S.C.O. Contractors, Inc.

National Labor Relations Board - Board Decisions

Sep 19, 1997

324 N.L.R.B. 73 (N.L.R.B. 1997)

1
324 NLRB No. 73
1 As indicated above, the General Counsel’s motion does not seek
summary judgment with respect to Respondent One, which did file
an answer denying various allegations of the complaint, including
the joint-employer allegations. Accordingly, the joint employer and
other allegations involving Respondent One are remanded to the Re-
gional Director for further appropriate action, as requested.
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.
S.C.O. Contractors, Inc. and Construction One, Inc.
and Michigan Regional Council of Carpenters,
United Brotherhood of Carpenters and Joiners
of America, AFL–CIO. Cases 7–CA–39402 and
7–CA–39403
September 19, 1997
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX AND
HIGGINS
Upon charges filed by the Union on January 23,
1997, the General Counsel of the National Labor Rela-
tions Board issued a consolidated complaint (com-
plaint) on April 25, 1997, against S.C.O. Contractors,
Inc. (Respondent SCO) and Construction One, Inc.
(Respondent One), the Respondents, alleging that they
have violated Section 8(a)(1) and (3) of the National
Labor Relations Act. Although properly served copies
of the charges and complaint, Respondent SCO failed
to file an answer.
On August 11, 1997, the General Counsel filed a
Motion for Partial Default Summary Judgment with
the Board with respect to the allegations involving Re-
spondent SCO. On August 14, 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. Neither Respondent filed a response. The alle-
gations 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 complaint
affirmatively notes that unless an answer is filed within
14 days of service, all the allegations in the complaint
will be considered admitted. Further, the undisputed al-
legations in the Motion for Partial Default Summary
Judgment disclose that the Region, by letter dated May
27, 1997, notified Respondent SCO that unless an an-
swer were received by June 11, 1997, a Motion for
Default Summary Judgment would be filed.
In the absence of good cause being shown for the
failure to file a timely answer, we grant the General
Counsel’s Motion for Partial Summary Judgment.1
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, Respondent SCO, a corpora-
tion with its principal office and place of business in
Grove City, Pennsylvania, has been a carpentry con-
tractor in the construction industry and has provided
such services as a subcontractor at an Amerihost Hotel
jobsite on Range Road in Port Huron, Michigan (the
Port Huron site). During the 1996 calendar year, Re-
spondent SCO, in conducting its operations described
above, had gross revenues in excess of $50,000 for
carpentry services performed in the Commonwealth of
Pennsylvania, and also had gross revenues in excess of
$50,000 for carpentry services performed for customers
outside the Commonwealth of Pennsylvania. We find
that Respondent SCO is now, and has been at all mate-
rial times, 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 December 17, 26, and 30, 1996, and January
12, 21, and 24, 1997, Respondent SCO coercively in-
terrogated employees regarding their activities on be-
half of and in support of the Union.
About December 17, 1996, and January 12 and 21,
1997, Respondent SCO conveyed to employees the fu-
tility of selecting the Union as their exclusive collec-
tive-bargaining representative.
About December 17, 1996, Respondent SCO asked
employees if they were ready to sign an affidavit
swearing that they were not and had never belonged to
a union, told employees they had to make sure that a
union did not get in, and asked employees if they
could promise that they could keep a union out.
About December 26, 1996, Respondent SCO told
employees that it would not be able to hire them be-
cause of their support of the Union, that it was not al-
lowed to hire union people, and that it could only hire
employees on the condition that they would agree that
it was a nonunion job.
About January 21, 1997, Respondent SCO threat-
ened employees with loss of employment by stating
that it would shut the job down and bring in another
crew from Pennsylvania to finish the job if they se-
lected the Union as their representative, supported the
position that employees were to remain nonunion if
they wished to remain on the job, interfered with em-
ployee rights by trying to persuade them to delay their
selection of a union, told employees that a ‘‘union
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2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
brother’’ had been on the jobsite and that they had lied
when hired by stating that they were not union mem-
bers, and threatened employees regarding their support
for the Union by stating that they would be terminated
if they lied when asked about being in the Union.
About January 22, 1997, Respondent SCO told em-
ployees they would be terminated if they wore a union
hardhat, interfered with Section 7 rights of employees
and coercively interrogated them by asking them to
sign a union waiver agreement, and threatened employ-
ees that they would be discharged if they did not sign
the union waiver agreement.
About January 24, 1997, Respondent SCO attempted
to disparage the Union by telling employees that the
Union would try to flatten tires and vandalize the job.
About January 29 and February 13, 1997, Respond-
ent SCO promised employees further job opportunities
if they did not vote for the Union.
About February 10, 1997, Respondent SCO threat-
ened employees with loss of jobs if they voted for the
Union.
About January 21, 1997, Respondent SCO dis-
charged its employee Ralph Giese, and on January 22,
1997, discharged its employees Teresa Zinzo and Kirk
Klebba. Since about March 1997, Respondent SCO has
declined to offer additional job opportunities to its em-
ployees who had worked on the Port Huron site. Re-
spondent SCO took these actions because of the activi-
ties of its employees on behalf of and in support of the
Union and to discourage employees from engaging in
these and other concerted activities.
CONCLUSIONS OF LAW
By the acts and conduct described above, Respond-
ent SCO 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 discharging Ralph Giese, Teresa Zinzo, and Kirk
Klebba, and declining to offer additional job opportu-
nities to its employees who had worked at the Port
Huron site, Respondent SCO has also been discrimi-
nating in regard to the hire or tenure or terms or condi-
tions of employment of its employees, thereby discour-
aging membership in a labor organization, and has
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 Respondent SCO 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 Respondent SCO has violated
Section 8(a)(3) and (1) by discharging Giese, Zinzo,
and Klebba, we shall order Respondent SCO to offer
the discriminatees immediate and 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, 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, 283 NLRB 1173 (1987).
Respondent SCO shall also be required to expunge
from its files any and all references to the unlawful
discharges and to notify the discriminatees in writing
that this has been done.
In addition, having found that Respondent SCO has
violated Section 8(a)(3) and (1) by declining, since
early March 1997, to offer additional job opportunities
to its employees who had worked on the Port Huron
site, we shall order Respondent SCO to place all those
employees on available jobs and make them whole for
any loss of earnings and other benefits suffered as a
result of the discrimination against them. Backpay
shall be computed in accordance with F. W. Wool-
worth Co., supra, with interest as prescribed in New
Horizons for the Retarded, supra.
ORDER
The National Labor Relations Board orders that the
Respondent, S.C.O. Contractors, Inc., Grove City,
Pennsylvania, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Coercively interrogating employees regarding
their activities on behalf of and in support of the
Union.
(b) Conveying to employees the futility of selecting
the Union as their exclusive collective-bargaining rep-
resentative.
(c) Asking employees if they are ready to sign an
affidavit swearing that they are not and have never be-
longed to a union.
(d) Telling employees they have to make sure that
a union does not get in or asking employees if they
can promise that they can keep a union out.
(e) Telling employees that it will not be able to hire
them because of their support of the Union, that it is
not allowed to hire union people, or that it can only
hire employees on the condition that they will agree
that it is a nonunion job.
(f) Threatening employees with loss of employment
by stating that it will shut a job down and bring in an-
other crew to finish the job if they select the Union
as their representative.
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3S.C.O. CONTRACTORS
2 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.’’
(g) Supporting the position that employees are to re-
main nonunion if they wish to remain on the job.
(h) Interfering with employee rights by trying to
persuade them to delay selection of a union.
(i) Telling employees that they had lied when hired
by stating that they were not union members or threat-
ening employees regarding their support for the Union
by stating that they will be terminated if they lie when
asked about being in the Union.
(j) Telling employees they will be terminated if they
wear a union hardhat.
(k) Asking employees to sign a union waiver agree-
ment or threatening employees that they will be dis-
charged if they do not sign a union waiver agreement.
(l) Attempting to disparage the Union by telling em-
ployees that the Union would try to flatten tires and
vandalize the job.
(m) Promising employees further job opportunities if
they do not vote for the Union.
(n) Threatening employees with loss of jobs if they
vote for the Union.
(o) Discharging employees or declining to offer
them additional job opportunities because of their ac-
tivities on behalf of and in support of the Union or to
discourage employees from engaging in these and
other concerted activities.
(p) 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
Ralph Giese, Teresa Zinzo, and Kirk Klebba full rein-
statement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights or
privileges previously enjoyed.
(b) Within 14 days from the date of this order, re-
move from its files any and all references to the un-
lawful discharges, and within 3 days thereafter notify
Ralph Giese, Teresa Zinzo, and Kirk Klebba in writing
that this has been done.
(c) Make Ralph Giese, Teresa Zinzo, and Kirk
Klebba whole for any loss of earnings and other bene-
fits suffered as a result of the discrimination against
them, with interest, in the manner set forth in the rem-
edy section of this decision.
(d) Place employees who had worked on the Port
Huron site on available jobs and make them whole for
any loss of earnings resulting from its failure to do so
since early March 1997, with interest, in the manner
set forth in the remedy section of this decision.
(e) 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.
(f) Within 14 days after service by the Region, post
at its facility in Grove City, Pennsylvania, copies of
the attached notice marked ‘‘Appendix.’’2 Copies of
the notice, on forms provided by the Regional Director
for Region 7, after being signed by Respondent SCO’s
authorized representative, shall be posted by Respond-
ent SCO 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 Respondent SCO 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, Respondent SCO has gone out of
business or closed the facility involved in these pro-
ceedings, Respondent SCO shall duplicate and mail, at
its own expense, a copy of the notice to all current
employees and former employees employed by Re-
spondent SCO at any time since January 23, 1997.
(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 Respondent SCO has taken
to comply.
IT IS FURTHER ORDERED that the proceeding is re-
manded to the Regional Director for further appro-
priate action.
Dated, Washington, D.C. September 19, 1997
llllllllllllllllll
William B. Gould IV, Chairman
llllllllllllllllll
Sarah M. Fox, Member
llllllllllllllllll
John E. Higgins, Jr., Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
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4 DECISIONS 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 coercively interrogate employees re-
garding their activities on behalf of or in support of
Michigan Regional Council of Carpenters, United
Brotherhood of Carpenters and Joiners of America,
AFL–CIO.
WE WILL NOT convey to employees the futility of
selecting the Union as their exclusive collective-bar-
gaining representative.
WE WILL NOT ask employees if they will sign an af-
fidavit swearing that they are not and have never be-
longed to a union.
WE WILL NOT tell employees they have to make
sure that a union does not get in or ask employees if
they can promise that they can keep a union out.
WE WILL NOT tell employees that we will not be
able to hire them because of their support of the
Union, that we are not allowed to hire union people,
or that we can only hire employees on the condition
that they will agree that the job is a nonunion job.
WE WILL NOT threaten employees with loss of em-
ployment by stating that we will shut a job down and
bring in another crew to finish the job if they select
the Union as their representative.
WE WILL NOT support the position that employees
are to remain nonunion if they wish to remain on the
job.
WE WILL NOT interfere with employee rights by try-
ing to persuade them to delay selection of a union.
WE WILL NOT tell employees that they had lied
when hired because they stated that they were not
union members or threaten employees regarding their
support for the Union by stating that they will be ter-
minated if they lie when asked about being in the
Union.
WE WILL NOT tell employees they will be terminated
if they wear a union hardhat.
WE WILL NOT ask employees to sign a union waiver
agreement or threaten employees that they will be dis-
charged if they do not sign a union waiver agreement.
WE WILL NOT attempt to disparage the Union by
telling employees that the Union would try to flatten
tires and vandalize the job.
WE WILL NOT promise employees further job oppor-
tunities if they do not vote for the Union.
WE WILL NOT threaten employees with loss of jobs
if they vote for the Union.
WE WILL NOT discharge employees or decline to
offer them additional job opportunities because of their
activities on behalf of and in support of the Union or
to discourage employees from engaging in these and
other 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 Ralph Giese, Teresa Zinzo, and
Kirk Klebba 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, within 14 days from the date of the
Board’s Order, remove from our files any and all ref-
erences to the unlawful discharges, and within 3 days
thereafter notify the discriminatees in writing that this
has been done.
WE WILL make Ralph Giese, Teresa Zinzo, and Kirk
Klebba whole for any loss of earnings and other bene-
fits suffered as a result of the discrimination against
them, with interest, in the manner set forth in a deci-
sion of the National Labor Relations Board.
WE WILL place employees who had worked on the
Port Huron site on available jobs and make them
whole for any loss of earnings resulting from our fail-
ure to do so since early March 1997, with interest, in
the manner set forth in a decision of the National
Labor Relations Board.
S.C.O. CONTRACTORS, INC.
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