Tetmyer Construction Co.

National Labor Relations Board - Board Decisions

May 14, 1979

242 N.L.R.B. 221 (N.L.R.B. 1979)

TETMYER CONSTRUCTION CO.. INC.
Tetmyer Construction Co., Inc. and Richard Bergman.
Case 6-CA- 11752
May 14, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS PENELLO
AND TRUESDALE
Upon a charge filed on October 30, 1978, by Rich-
ard Bergman, herein called the Charging Party, and
duly served on Tetmyer Construction Co., Inc.,
herein called Respondent, the General Counsel of the
National Labor Relations Board, by the Regional Di-
rector for Region 6, issued a complaint and notice of
hearing on December 29, 1978, against Respondent,
alleging that Respondent had engaged in and was en-
gaging 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 before an administrative law
judge were duly served on the parties to this proceed-
ing.
With respect to the unfair labor practices, the com-
plaint alleges in substance that on or about July 24.
1978, Respondent laid off its employee, Richard
Bergman, and thereafter failed and refused to recall
him because of his membership in and activities on
behalf of Laborers' International Union of North
America, Local 1058, AFL-CIO, and because he en-
gaged in concerted activities with other employees for
the purpose of collective bargaining and other mutual
aid and protection. The Respondent failed to file an
answer to the complaint.
On March 2, 1979, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment. Subsequently, on March 19, 1979, the
Board issued an order transferring the proceeding to
the Board and a Notice To Show Cause why the Gen-
eral Counsel's Motion for Summary Judgment should
not be granted. Respondent thereafter filed a re-
sponse to the 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.
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 alle-
gations in the complaint, if no answer is filed, or
any allegation in the complaint not specifically
denied or explained in an answer filed, unless the
respondent shall state in the answer that he is
without knowledge, shall be deemed to be admit-
ted to be true and shall be so found by the
Board, unless good cause to the contrary is
shown.
The complaint and notice of hearing duly served
on Respondent specifically states that unless an an-
swer to the complaint is filed by Respondent within
10 days of service thereto, "all of the allegations in
the complaint shall be deemed to be admitted to be
true and may be so found by the Board."
A letter was sent to Respondent's owner on Febru-
ary 14. 1979. advising him that an answer had not yet
been received and that unless an answer was received
by an extended filing date, the close of business on
February 22, 1979, a Motion for Summary Judgment
would be filed. A copy of the February 14, 1979, let-
ter is attached to the Motion for Summary Judgment
as an exhibit. Counsel for the General Counsel alleges
that no answer was received by the close of business
on February 22. 1979.
By telegram dated March 28, 1979. Respondent's
counsel requested an extension of time for a period of
10 days for filing a response to the Notice To Show
Cause. Thereafter, the time for filing a response was
extended to April 12, 1979. On April 9, 1979, Respon-
dent filed with the Board an answer to the Notice To
Show Cause why the Motion for Summary Judgment
should not be granted wherein Respondent asserts,
inter alia, that "a hearing should be re-scheduled and
an opportunity be given to Respondent, Tetmyer
Construction Co., Inc., to file an Answer to Petition-
er's Complaint." The response fails to state any rea-
son for Respondent's failure to file an answer within
the time granted. While the response asserts that "the
allegations averred in the Complaint and the Motion
for Summary Judgment are not true." it fails to spec-
ify in what manner the Motion for Summary Judg-
ment is incorrect or untrue. We find, therefore, that
the response fails to show good cause for denying the
Motion for Summary Judgment. Accordingly, we
grant the Motion for Summary Judgment.
On the basis of the entire record, the Board makes
the following:
242 NLRB No. 37
221
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINI)IN(;S O() FAC(I
I. IE BUSINESS OF ilIF RESPONI)ENT
Tetmyer Construction Co., Inc., at all times mate-
rial herein, has been a Pennsylvania corporation, with
an office and place of business located in Gibsonia,
Pennsylvania, where it is engaged in sewer line con-
struction. During the 12-month period immediately
preceding the issuance of the complaint in this case,
Respondent performed services valued in excess of'
$50,000 for companies which are themselves directly
engaged in interstate commerce.
We find, on the basis of the foregoing, that Respon-
dent 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, and that it will
effectuate the policies of' the Act to assert jurisdiction
herein.
II. 1I I LABOR OR(;ANIZAIION IN)INVED
Laborers' International Union of' North America,
Local 1058, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
111. ilL (IIARK(;IN(; PARFY
Richard Bergman is an employee within the mean-
ing of Section 2(3) of the Act.
IV. IE UNFAIR L.AB()R PRA(CII( ES
On or about July 24, 1978, Respondent laid off,
and since August 28, 1978, it has failed and refused to
recall, its employee, Richard Bergman, because of his
membership in and activities on behalf of Laborers'
International Union of North America, Local 1058,
AFL CIO, and because he engaged in concerted ac-
tivities with other employees for the purpose of col-
lective bargaining and other mutual aid or protection.
Accordingly, we find that, by the aforesaid conduct
as set forth above, Respondent has interfered with,
restrained, and coerced its employee in the exercise of
the rights guaranteed him under Section 7 of the Act,
and has discriminated in regard to his terms and con-
ditions of employment, and by such conduct Respon-
dent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(3) and
(1) of the Act.
V. THE EFFE(T OF THE UNFAIR I.ABOR PRACtICES
UPON (OMMER('E
The activities of Respondent set forth in section IV,
above, occurring in connection with its operations de-
scribed in section 1, above, have a close, intimate, and
substantial relationship to trade, traffic, and com-
merce among the several States and tend to lead to
labor disputes burdening and obstructing commerce
and the free flow of commerce.
VI. 1111 RMEI)Y
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 poli-
cies of the Act.
We shall order that Respondent offer Richard
Bergman immediate and full reinstatement to his for-
mer job or, if his former job no longer exists, to a
substantially equivalent position. without prejudice to
his seniority or any other rights and privileges previ-
ously enjoyed, and make him whole for any loss of
pay which he may have suffered by payment to him
of a sum of money equal to that which he would have
normally earned as wages from August 28, 1978, to
the date of such offer of reinstatement, less his net
earnings during said period, backpay and interest
thereon to be computed in the manner prescribed in
F. W. Woolworth Compatn . 90 NLRB 289 (1950), and
Florida Steel Corporation. 231 NI.RB 651 (1977).'
Having found that Bergman was laid off for engag-
ing in protected concerted activities. we shall order
the Respondent to cease and desist from infringing in
any like or related manner upon the rights of employ-
ees guaranteed in Section 7 of the Act.
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
C()N( LUSItsO()Ns ()01 LAW
I. Tetmyer Construction Co.. Inc., is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Laborers' International Union of North Amer-
ica, Local 1058, AFL CIO, is a labor organization
within the meaning of' Section 2(5) of the Act.
3. Richard Bergman is an employee within the
meaning of Section 2(3) of' the Act.
4. By laying off and thereafter failing and refusing
to recall Richard Bergman, Respondent has engaged
in and is engaging in unfair labor practices within the
meaning of Section 8(a)(3) and (1) of the Act.
5. The unfair labor practices engaged in by Re-
spondent, as set forth in Conclusion of Law 4, above,
affect commerce within the meaning of Section 2(6)
and (7) of the Act.
See. generally. Iis Plumbing & Healtrg (, 138 NlRB 716 (1962).
222
IFEtMYER CONSIRICTION CO.. INC'.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the Respondent. et-
myer Construction Co., Inc.. Gibsonia, Pennsylvania.
its officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Discouraging membership in aborers' Inter-
national Union of North America, Local 1058, AFL
CIO, or any other labor organization. by laying off
employees and failing and refusing to recall them, or
by otherwise discriminating in regard to hire or ten-
ure of employees or any term or condition of employ-
ment.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Offer Richard Bergman immediate and full re-
instatement to his former position or, if that position
is no longer available, to a substantially equivalent
position, without prejudice to his seniority or other
rights and privileges previously enjoyed, and make
him whole for any loss of earnings he may have suf-
fered as a result of his layoff by Respondent in the
manner set forth in the section of this Decision enti-
tled "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) Post at its Gibsonia. Pennsylvania. place of
business copies of the attached notice marked "Ap-
pendix." 2 Copies of said notice, on forms provided by
2 In the eent that this Order is enforced h a judgment of a United States
Court of Appeals. the words in the notice reading "Posted bh Order of the
National l.abor Relations Board" shall read "Posted Pursuant to I Judgment
of the United States Court of Appeals Enforcing an Order f the National
Labor Relations Board."
the Regional Director for Region 6. after being duly
signed by Respondent's representative, shall be
posted by Respondent immediately upon receipt
thereof. and be maintained by it for 60 consecutive
days thereafter. in conspicuous places. including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director for Region 6. in
writing, within 20 days from the date of this Order.
what steps Respondent has taken to comply herewith.
APPENDIX
Noii(I: Ito EilOlills
Posi.l) BY ORi)R OF 111-
NAIION()AI LABR() RE,.ATI()NS BOARD
An Agency of the United States Government
WVE WII.I NOI discourage membership in La-
borers' International Union of North America.
Local 1058, AFL CIO. or any other labor or-
ganization by discriminatorily laying off employ-
ees and failing and refusing to recall them. or b
otherwise discriminating in regard to the hire or
tenure of our employees or any term or condition
of employment.
WE WUil. Ni in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them in
Section 7 of the Act.
Wt: Wull,. offer employee Richard Bergman
immediate and full reinstatement to his former
position or. it' that job no longer exists, to a sub-
stantially equivalent position, without prejudice
to his seniority or other rights and privileges pre-
viously enjoyed.
WE vi I make whole employee Richard Berg-
man for any loss of pay he suffered as a result of
our unlawful discrimination against him. with in-
terest.
Ti IMYER Co)NSFRtu (ION C)., IN.
223