TMC Contractors, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 2003

339 N.L.R.B. 429 (N.L.R.B. 2003)

TMC CONTRACTORS, INC. 429
TMC Contractors, Inc. and Cement Masons’ Rock
Asphalt and Composition Floor Finishers’ Local
Union 502, AFL–CIO. Case 13–CA–40398
June 30, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND ACOSTA
The General Counsel in this case seeks summary
judgment on the ground that the Respondent has failed to
answer the complaint. Upon charges filed by the Union
on August 6, 2002, and amended on October 29, 2002,
the Regional Director issued a consolidated complaint on
October 30, 2002, against TMC Contractors, Inc., the
Respondent. The complaint alleges, in paragraphs 6 and
8, that the Respondent violated Section 8(a)(3) and (1) of
the Act by discharging an employee because he engaged
in protected activity, and, in paragraphs 5 and 7, that the
Respondent violated Section 8(a)(1) of the Act by inter-
rogating employees about their protected activity and by
threatening employees with loss of employment because
they signed union cards.
The consolidated complaint required the Respondent
to file an answer within 14 days of service thereof, which
it did not do. By letter of December 30, 2002, counsel for
the General Counsel advised the Respondent that unless
an answer was received by January 10, 2003, a Motion
for Summary Judgment would be filed. On January 6,
2003, the Respondent’s president, Kevin Thomas, acting
pro se, faxed to the counsel for the General Counsel cop-
ies of the Respondent’s previously submitted position
statement and affidavit. The fax cover sheet indicated
that the Respondent intended these documents to be “an
answer to the allegations in the Complaint.”
In the position statement and the affidavit, the Respon-
dent asserts that it did not discharge employee Tim
Timmons, as alleged, but rather Timmons left voluntar-
ily. The affidavit explained that Timmons initially chose
to leave the Respondent’s worksite following a misun-
derstanding with the Union. The affidavit further ex-
plained that, after the misunderstanding was cleared up,
Timmons told the Respondent that he did not want to
work for the Respondent because he did not like the en-
vironment.
On February 18, 2003, counsel for the General Coun-
sel sent another letter to the Respondent extending the
deadline for the Respondent to file an answer to February
25, 2003, and stated that a failure to respond by that date
would result in a Motion for Summary Judgment being
filed. The Respondent did not respond to the February
18, 2003 letter. On March 5, 2003, the Region filed the
present Motion for Summary Judgment.
On March 12, 2003, the Board issued an order trans-
ferring the proceeding to the Board and a Notice to Show
Cause why the General Counsel’s motion should not be
granted. The Respondent has not filed a response to the
Notice to Show Cause.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Summary 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 consolidated complaint affirma-
tively states that unless an answer is filed within 14 days
of service, all the allegations in the complaint will be
considered admitted.
Section 102.20 specifies that the answer must “specifi-
cally admit, deny, or explain each of the facts alleged in
the complaint.” However, the Board has afforded some
latitude to pro se litigants who fail to comply fully with
Board procedures in answering complaint allegations.
See Central States Xpress, 324 NLRB 442, 444 (1997).
“Thus, the Board will generally not preclude a determi-
nation on the merits if it finds that a pro se respondent
has filed a timely response, which can reasonably be
construed as denying the substance of the complaint alle-
gations.” Nu-Temp Assocs. Heating & Cooling, 338
NLRB 790 (2003). The Board has also allowed pro se
respondents to expressly incorporate by reference earlier
documents or position statements as an answer to the
complaint. Mid-Wilshire Health Care Center, 331
NLRB 1032, 1033–34 (2000). To do so, the pro se re-
spondent must intend its precomplaint position statement
to serve as an answer to the complaint allegations.
Black’s Railroad Transit Service, 334 NLRB 325 (2001).
We find that the Respondent’s January 6, 2003 fax,
submitted in response to the Region’s request to file an
answer, constitutes a sufficient answer to the complaint’s
8(a)(3) allegation. In this submission, Thomas expressly
stated that he considered his prior submissions to the
Region to be “an answer to the allegations in the Com-
plaint,” and attached copies of all the prior submissions.
These documents effectively deny the allegation that the
Respondent violated Section 8(a)(3) of the Act by dis-
charging Timmons for his union activity. As noted
above, the documents state that, after rectifying a misun-
derstanding that caused Timmons to leave the Respon-
dent’s worksite, the Respondent asked Timmons to re-
turn to work, but Timmons declined further employment
with the Respondent. The Respondent’s explanation of
the events at issue would raise the defense that Timmons
left the Respondent voluntarily. Accordingly, under the
339 NLRB No. 60
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 430
more lenient standard afforded to pro se respondents, the
January 6 fax is sufficient because it contains “effective
denials of the substance of these complaint allegations
[that] raise substantial and material issue of fact warrant-
ing a hearing before an administrative law judge.” Mid-
Wilshire, supra, 331 NLRB at 1034. Because the Re-
spondent has sufficiently answered the 8(a)(3) allegation
in the complaint, we deny the Motion for Summary
Judgment as to complaint paragraphs 6 and 8.
The complaint also alleges that the Respondent vio-
lated Section 8(a)(1) of the Act by interrogating employ-
ees about their protected activity and by threatening em-
ployees with loss of employment because they signed
union cards. These allegations have not been answered.
The Respondent’s January 6, 2003 fax did not refer to
either allegation, and the Respondent did not submit any
other document referring to these allegations. Accord-
ingly, we shall grant the Motion for Summary Judgment
as to complaint paragraphs 5 and 7. See Mid-Wilshire,
supra (denying motion in part and granting in part for pro
se response that substantively denied some complaint
allegations but ignored others).
On the entire record, the Board makes the following
FINDINGS OF FACT
1. JURISDICTION
At all material times the Respondent, TMC Contrac-
tors, Inc., a corporation with an office and place of busi-
ness in Chicago, Illinois, has been engaged as a contrac-
tor in the building and cement construction industry.
During the 12-month period preceding the issuance of
the complaint, the Respondent, in conducting its business
operations, has purchased and received at its Chicago,
Illinois facility goods valued in excess of $50,000 di-
rectly from points located outside the State of Illinois.
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 the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
About May 2002, on a date well known to the Respon-
dent, the Respondent, by Superintendent/Supervisor
David Long, at a jobsite located at the Wendell Phillips
High School in Chicago, Illinois, interrogated employees
about whether they signed union cards, and threatened
employees with loss of employment because they signed
union cards.
Conclusion
By interrogating employees about whether they signed
union cards, and by threatening employees with loss of
employment because they signed union cards, the Re-
spondent has engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1) and
Sections 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)(1)
by interrogating employees about whether they signed
union cards, and by threatening employees with loss of
employment because they signed union cards, we shall
order the Respondent to cease and desist from interrogat-
ing employees about whether they signed union cards,
and from threatening employees with loss of employ-
ment because they signed union cards.
ORDER
The National Labor Relations Board orders that the
Respondent, TMC Contractors, Inc., Chicago, Illinois, its
officers, agents, successors, and assigns shall
1. Cease and desist from
(a) Interrogating employees about whether they signed
union cards.
(b) Threatening employees with loss of employment
because they signed union cards.
(c) 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 purposes of the Act.
(a) Within 14 days after service by the Region, post at
the Respondent’s facility in Chicago, Illinois, copies of
the attached notice marked “Appendix.”1 Copies of the
notice, on forms provided by the Regional Director for
Region 13, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Respon-
dent and maintained for 60 consecutive days in con-
spicuous places, including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, 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 facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former

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.”
TMC CONTRACTORS, INC. 431
employees employed by the Respondent at any time
since May 1, 2002.
(b) 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.
IT IS FURTHER ORDERED that the General Counsel’s
Motion for Summary Judgment is denied with respect to
the allegations set forth in complaint paragraphs 6 and 8,
and that this proceeding is remanded to the Regional
Director for Region 13 for the purpose of arranging a
hearing before an administrative law judge limited to the
allegations set forth in complaint paragraphs 6 and 8. The
administrative law judge shall prepare and serve on the
parties a decision containing findings of fact, conclusions
of law, and recommendations based on all of the record
evidence. Following service of the administrative law
judge’s decision on the parties, the provisions of Section
102.46 of the Board’s Rules shall be applicable.
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 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 interrogate employees about whether
they signed union cards.
WE WILL NOT threaten employees with loss of em-
ployment because they signed union cards.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of your rights
under Section 7 of the Act.

TMC CONTRACTORS, INC.