Seco Electric Co.

National Labor Relations Board - Board Decisions

Sep 20, 1985

276 N.L.R.B. 159 (N.L.R.B. 1985)

SECO ELECTRIC CO
Seco Electric Company and Donald Tutorow. Case
9-CA-20820
20 September 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
Upon a 'charge ,filed by Donald Tutorow 11
April 1984,1 the Acting General Counsel of the
National Labor Relations Board issued a complaint
27 July against the Seco Electric' Company, the
Respondent, alleging that it has violated Section
8(a)(1) of,the National Labor Relations Act, by
constructively discharging the Charging Party on
23 March. "
On 10 August the Company filed an answer ad-
mitting certain allegations, but denying other alle-
gations of the complaint, including the commission
of any unfair labor practices. As an affirmative de-
fense the Company alleged that the Charging Party
was terminated for refusing to report for work.
On 29 August the Acting General Counsel filed`
an amended complaint alleging the Company's vio-
lation of Section.8(a)(1) by deciding to,transfer the,
Charging Party on 23 March and by constructively
discharging him on 26 March. Although properly
served with a copy of the .amended complaint, the
Company failed to file an answer. - r
. On 5 November the General Counsel filed, a
Motion for Summary Judgment and a memoran-
dum in support thereof. On 7 November 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 Company filed
no response. However, the Board denied the Gen-
eral Counsel's motion 2 on the ground that the
complaint and amended complaint had failed to
allege that the Charging Party had engaged in pro-
tected concerted activity as that term had been de-,
fined in Meyers Industries,3 i.e., 'engaged in with
or on the authority of other' employees, and not
solely biand on behalf of the employee himself,"
and remanded the, proceeding to the Regional Di-'
rector for further appropriate. action.
On 18 April 19854 the General Counsel issued a
second amended complaint, alleging that the Com-
pany violated, Section 8(a)(1) of the Act by decid-
ing to ,transfer the Charging Party on 23 March
1984 and by constructively discharging him,on, 26
March 1984 because he had engaged in protected
' All dates are 1984 unless otherwise noted
2 274 NLRB 755'(1985). Members Johansen and Babson did not par-
ticipate in the denial of the motion
2 268 NLRB 493,497 (1984)
4 All subsequent dates are 1985 unless otherwise indicated
159
concerted activities, i.e., "making inquiries and
complaints, on the authority of other employees, to
the Ohio Department of Industrial Relations re-
garding Respondent's alleged failure to pay, to
himself and other employees, prevailing wage rates
and its alleged failure to pay, for himself and other
employees, appropriate sums of monies to the
Profit Sharing Trust on their behalf." Although
properly served copies of the second amended
complaint, the' Company has failed to file an
answer. Rather, on 24 April the Company, acting,
through its attorney, orally informed the General
Counsel that it did not intend to file an answer to
the amended or second amended complaints and
further advised the General Counsel to proceed
with the filing of a Motion for Summary Judgment,
since the Company did not intend to, defend itself
in, this matter. On 1 May the Company in writing
withdrew its answer to the initial (27 July 1984)
complaint. The Company ' acknowledged that its
failure to' file an answer to the amended and second
amended complaints would result in the General
Counsel filing a Motion for Summary Judgment
and that under the Board's Rules all of the allega-
tions would, therefore, be deemed to be admitted
to be true, and would be so found by the 'Board.
The National Labor,Relations Board has delegat-
ed its authority in this, proceeding to a three-
member panel.'
On 20 May the General Counsel filed the instant
Motion for Summary Judgment. On 24 May 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 Company filed
no response. The allegations in the motion are
therefore undisputed. •
Ruling on Motion for Summary Judgment
Section 102.20• of the Board's Rules and Regula-
tions provides that the allegations in the complaint
shall be deemed admitted if an answer is not filed
within 10 days from service of the complaint,
unless good cause is shown. The complaint states
that unless an answer is filed within 10 days of
service, "all the allegations in the complaint shall
be deemed to be admitted to be true and shall be so
found by the Board." Further, the undisputed' alle-
gations in the Motion for Summary Judgment dis-
closese that the Company on 1 May acknowledged,
in writing to the General Counsel that its failure to
file an answer to the amended and second amended
complaint would result in the General Counsel
filing a Motion for Summary Judgment.
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.
276 NLRB No. 27
160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the entire record, the Board makes the fol-
lowing
FINDINGS OF FACT
1. JURISDICTION
The Company, an Ohio corporation with an
office and place of business in • Columbus, Ohio,io, has
been engaged as an electrical contractor in the
building and construction industry, providing elec-
tricl - contracting for commercial, industrial, and in-
stitutional facilities. During the 12-month period
ending 19 April 1984, the Company, in the course
of its business operations, performed, services
valued in excess of $50,000 in States other than the
State of Ohio. We find that the Company is an em-
ployer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act and that the Union
is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
About 23 March- 1984, the Company decided to
transfer the .'Charging, Party from its Mansfield;
Ohio jobsite to its Westerville, Ohio ' jobsite; and,'
about 26 March 1984, the Company constructively
discharged the Charging ' Party, and since then has
failed to reinstate him to his former position. The
Company took these actions because the Charging
Party engaged in protected- concerted activities by
making inquiries and complaints, on' the authority'
of other'employees, to the Ohio Department of In-
dustrial Relations regarding the Company's alleged
failure to pay himself and other employees prevail-
ing wage rates, and the Company's alleged failure
to pay for himself and other employees appropriate
sums -of money to the profit-sharing trust on their
behalf. Accordingly, we find that the Company, by
its actions, has violated Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
By deciding on 23 March 1984 to transfer the
Charging Party and by constructively discharging
the Charging Party on 26 March. 1984, because he
engaged 'in concerted activities. for the purpose of
collective bargaining and other mutual - aid or pro-
'tection , and in order to discourage employees from
engaging in such activities or other activities for
the purpose of collective -bargaining or 'other
mutual aid or protection, the Company has en-
gaged in unfair labor practices affecting commerce
within the meaning of Section 8(a)(1) 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 designed to effectuate the policies of the
Act.
We shall order that the Company offer the
Charging Party, Donald Tutorow,` immediate and
full reinstatement to his former job or, if that job
no longer exists,, to, a substantially equivalent posi-
tion, and make him whole for any loss of earnings
he' may have suffered as a result of the unlawful
constructive discharge, plus interest, with backpay
to be computed in 'accordance with F. W. Wool-
worth Co.,, 90 NLRB 289 (1950), :with interest as
prescribed in Florida Steel Corp., 231 NLRB 651
(1977). See generally Isis Plumbing Co., 138 NLRB
716 (1962). We shall also order that the Company-
expunge from its records all references to .the trans-
fer and termination of the Charging Party and
notify him that this has been done.
ORDER
The National Labor.- Relations Board orders that
the Respondent, , Seco Electric Company, Colum-.'
bus,. Ohio, - its officers,- agents, successors, and- as-
signs, shall . '
1. Cease 'and desist from '
(a) ' Deciding to transfer or constructively dis-
charging' any employee for engaging in concerted,
activities for the purpose, of collective bargaining
or other mutual -aid or protection. •
(b) In any like or related manner interfering
with, restraining, or- coercing employees in the ex-
ercise of -the rights guaranteed them by -Section 7
of the Act. - '
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Offer Donald Tutorow immediate and full re-
instatement 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, and make
him whole for any loss of earnings or other bene-
fits suffered as a result of the unlawful action
against him, in the manner set forth in the remedy
section of the decision.
(b) Remove' from its files any reference to the
unlawful decision to transfer 'Donald Tutorow and
to his unlawful discharge and notify him in writing
that this has been, done and that the evidence of
these unlawful actions will not be used, against him
in any way. •
(c) Preserve and, on request, make available to
the Board or its agents for examination and copy-
SECO ELECTRIC CO
ing, 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
(d) Post at its facility in Columbus Ohio, copies
of the attached notice marked Appendix S
Copies of the notice on forms provided by the Re
gional Director for Region 9, after being signed by
the Respondents authorized representative, shall be
posted by the Respondent immediately upon re
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no
tices to employees are customarily posted Reason
able steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or
covered by any other material
(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply
b 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 Judgment
of the United States Court of Appeals Enforcing an Order of the Nation
al Labor Relations Board
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
161
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 decide to transfer or constructive
ly discharge any employee for engaging in concert
ed activities for the purpose of collective bargain
ing or other mutual aid or protection
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer
cise of the rights guaranteed you by Section 7 of
the Act
WE WILL offer Donald Tutorow immediate and
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 WE
WILL make him whole for any loss of earnings and
other benefits resulting from his discharge, less any
net interim earnings, plus interest
WE WILL notify Donald Tutorow that we have
removed from our files any reference to our unlaw-
ful decision to transfer him and to his unlawful dis
charge and that the discharge will not be used
against him in any way
SECO ELECTRIC COMPANY