Oregon Excavating, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 2002

338 N.L.R.B. 20 (N.L.R.B. 2002)

NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the E x­
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.
Oregon Excavating, Inc. and International Union of
Operating Engineers, Local 701. Case 36–CA–
9026–1
September 30, 2002
DECISION AND ORDER
BY MEMBERS LIEBMAN, COWEN, AND BARTLETT
The General Counsel seeks summary judgment in this
case on the ground that the Respondent has failed to file
an answer to the complaint. Upon a charge filed by the
International Union of Operating Engineers, Local 701
(the Union) on June 3, 2002, the Ge neral Counsel issued
the complaint on July 31, 2002, against Oregon Excavat­
ing, Inc., the Respondent, alleging that it has violated
Section 8(a)(3) and (1) of the Act. The Respondent
failed to file an answer.
On August 30, 2002, the General Counsel filed a Mo­
tion for Summary Judgment with the Board. On Sep­
tember 4, 2002, 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 Respondent
filed no response. The allegations 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, unless good cause
is shown. In addition, the complaint affirmatively states
that unless an answer is filed within 14 days of service,
all the allegations in the complaint will be considered
admitted. Further, the undisputed allegations in the Mo­
tion for Summary Judgment disclose that the Region, by
facsimile and certified mail dated August 15, 2002, noti­
fied the Respondent that unless an answer was received
by August 23, 2002, a Motion for Summary 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 Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a State of Oregon corporation, with
its office and place of business in Clackamas, Oregon,
where it is engaged in the business of excavation. Dur­
ing the 12-month period preceding the issuance of the
complaint, the Respondent, in the course and conduct of
its business operations, purchased and caused to be trans­
ferred and delivered to its Clackamas, Oregon facility
goods valued in excess of $50,000 directly from sources
outside the State of Oregon. We find that the Respon­
dent 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
On about May 7, 2002, the Union established a lawful
picket line at the Respondent’s premises. On May 7,
2002, the Respondent’s employee William G. Tsiatsos
honored the picket line. On about May 9, 2002, the Re­
spondent terminated Tsiatsos. The Respondent termi­
nated Tsiatsos because he refused to cross the picket line,
and to discourage emp loyees from engaging in this or
other concerted activities.
CONCLUSION OF LAW
By terminating William G. Tsiatsos because he refused
to cross the Union’s lawful picket line, the Respondent
has engaged in an unfair labor practice affecting com­
merce within the meaning of Section 8(a)(3) and (1) and
Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in an
unfair labor practice, we shall order it to cease and desist
and to take certain affirmative action designed to effectu­
ate the policies of the Act. Specifically, having found
that the Respondent has violated Section 8(a)(3) and (1)
by unlawfully terminating William G. Tsiatsos, we shall
order the Respondent to offer Tsiatsos full reinstatement
to his former job, or, if that job no longer exists, to a sub­
stantially equivalent position, without prejudice to his
seniority or any other rights or privileges previously en-
joyed, and to make him whole for any loss of earnings
and other benefits suffered as a result of the termination.
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, 283 NLRB
1173 (1987). The Respondent shall also be required to
remove from its files any reference to the unlawful ter­
mination, and to notify Tsiatsos in writing that this has
been done and that the unlawful termination will not be
used against him in any way.
ORDER
The National Labor Relations Board orders that the
Respondent, Oregon Excavating, Inc., Clackamas, Ore­
gon, its officers, agents, successors, and assigns, shall
338 NLRB No. 20
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from
(a) Terminating its employees because they refuse to
cross the Union’s lawful picket line, and to discourage
employees from engaging in this or other concerted un­
ion activities.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exe rcise 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
William G. Tsiatsos 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 and privileges previously enjoyed.
(b) Make William G. Tsiatsos whole for any loss of
earnings and other benefits suffered as a result of his
unlawful termination, with interest, 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 all references to the unlawful termination of
William G. Tsiatsos, and within 3 days thereafter, notify
him in writing that this has been done, and that the
unlawful termination 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 Clackamas, Oregon, copies of the attached
notice marked “Appendix.”1 Copies of the notice, on
forms provided by the Regional Director for Region 36,
after being signed by the Respondent’s authorized repre­
sentative, shall be posted by the Respondent and main­
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus­
tomarily posted. Reasonable steps shall be taken by the
Respondent 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, the Re­
spondent has gone out of business or closed the facility
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 Relat ions Board.”
involved in these proceedings, the Respondent shall du­
plicate and mail, at its own exp ense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since May 9, 2002.
(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 com­
ply.
Dated, Washington, D.C. September 30, 2002
Wilma B. Liebman, Member
William B. Cowen, Member
Michael J. Bartlett, 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

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 a 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 our employees because they re-
fuse to cross the International Union of Operating Engi­
neers, Local 701’s lawful picket line, or to discourage
other emp loyees from engaging in this or other concerted
union activity.
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 William G. Tsiatsos full reinstatement to his
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former job or, if that job no longer exists, to a substan- WE WILL, within 14 days from the date of the Board’s
tially equivalent position, without prejudice to his senior- Order, remove from our files all references to the unlaw­
ity or any other rights and privileges previously enjoyed. ful termination of William G. Tsiatsos, and WE WILL
WE WILL make William G. Tsiatsos whole for any loss within 3 days thereafter, notify him in writing that this
of earnings and other benefits suffered as a result of his has been done, and that the unlawful termination will not
unlawful termination, with interest. be used against him in any way.
OREGON EXCAVATING, INC.
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