Ashland Construction Company

National Labor Relations Board - Board Decisions

Sep 30, 1981

258 N.L.R.B. 582 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ashland Construction Company and Simon & Clem-
ency, Inc., Architects and Tod A. Tumbiolo.
Case 13-CA-20542
September 30, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
Upon a charge filed on October 31, 1980, and an
amended charge filed on December 1, 1980, by
Tod A. Tumbiolo, an Individual, herein called
Tumbiolo, and duly served on Ashland Construc-
tion Company and Simon & Clemency, Inc., Archi-
tects, herein together called Respondent, the Gen-
eral Counsel of the National Labor Relations
Board, by the Regional Director for Region 13,
issued a complaint on December 5, 1980, against
Respondent, alleging that Respondent had engaged
in and was engaging in unfair labor practices af-
fecting commerce within the meaning of Section
8(a)(1) and (3) and Section 2(6) and (7) of the Na-
tional Labor Relations Act, as amended. Copies of
the charges and complaint and notice of hearing
before an administrative law judge were duly
served on the parties to this proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that Respondent had
violated Section 8(a)(1) by threatening an employee
with discharge if the employee sought union help,
and violated Section 8(a)(3) and (1) by discharging
the Charging Party, Tumbiolo, because he engaged
in union and/or protected concerted activities.
On January 13, 1981, Respondent's counsel filed
an answer to the complaint, but on June 15, 1981,
advised the Regional Office by letter that Respond-
ent had ceased doing business, had no assets, and
did not intend to present a defense to the com-
plaint. On June 26, 1981, Respondent's counsel
wrote the Regional Office that counsel was with-
drawing the answer that had been filed on January
13, 1981.'
On July 15, 1981, the General Counsel filed di-
rectly with the Board a Motion for Summary Judg-
ment. Subsequently, on July 20, 1981, 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 did not file a
response to the Notice To Show Cause.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
' The letter also stated: "It is my understanding that you will be pro-
ceeding for judgment against the said two defendants and we will not be
defending same."
258 NLRB No. 79
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:
The respondent shall, within 10 days from the
service of the complaint, file an answer there-
to. The respondent shall specifically admit,
deny, or explain each of the facts alleged in
the complaint, unless the respondent is without
knowledge, in which case the respondent shall
so state, such statement operating as a denial.
All allegations 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 admitted 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 served on
Respondent specifically stated that, unless an
answer to the complaint was filed within 10 days
from the service thereof, "all of the allegations in
the Complaint shall be deemed to be admitted to be
true and may be so found by the Board." Although
Respondent filed an answer, it subsequently with-
drew the answer. The withdrawal of an answer
necessarily has the same effect as a failure to file an
answer, and thus the allegations of the complaint
must be deemed admitted as true as if no answer
had ever been filed.2 No good cause to the con-
trary having been shown, in accordance with Sec-
tion 102.20 of the Board's Rules set out above, the
allegations in the complaint against Respondent are
deemed admitted and are found to be true. Accord-
ingly, we grant the General Counsel's Motion for
Summary Judgment.
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
At all times material herein, Ashland Construc-
tion Company and Simon & Clemency, Inc., Archi-
tects, were Illinois corporations engaged in archi-
tecture and construction management. They were
affiliated business enterprises with common offi-
cers, ownership, directors, management, and super-
vision. They formulated and administered a
common labor policy affecting employees of the
2 See Barr-Saunders. Inc., 246 NL.RB 976 (1979); Nicky Chevrolet Sales.
Inc.., 199 NLRB 411 (1972).
582
ASHLAND CONSTRUCTION COMPANY
operations, shared common premises and facilities,
provided services for and to each other, inter-
changed personnel with each other, and held them-
selves out to the public as a single integrated busi-
ness enterprise.
By virtue of the operations described above Ash-
land Construction Company and Simon & Clemen-
cy, Inc., Architects, constitute a single integrated
business enterprise and a single employer within
the meaning of the Act.
At all times material herein, Respondent main-
tained facilities at 6354 North Broadway, Chicago,
Illinois, and at 737 Barracks Street, New Orleans,
Louisiana, and operated as construction manager
for commercial facilities in Munster and Merrill-
ville, Indiana.
During the 12 months preceding complaint, a
representative period, Respondent, in the course
and conduct of its business operations described
above, received gross revenues in excess of
$250,000 and provided services directly to custom-
ers outside the State of Illinois valued in excess of
$50,000.
We find, on the basis of the foregoing, that Re-
spondent 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.
11. THE LABOR ORGANIZATION INVOLVED
Local 41, Laborers International Union of North
America, is a labor organization within the mean-
ing of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICE
At all times material herein, the following named
persons occupied the positions set opposite their re-
spective names, and were then and are now super-
visors within the meaning of Section 2(11) of the
Act, and agents of Respondent acting on its behalf,
within the meaning of Section 2(13) of the Act:
George Johnson-Superintendent
J. E. Simon-Secretary
In and about the months of May, June, and July,
1980, at its Munster and Merrillville, Indiana, con-
struction sites, Respondent, by its agent and super-
visor, George Johnson, interfered with, restrained,
and coerced employees in the exercise of the rights
guaranteed by Section 7 of the Act, when Re-
spondent threatened an employee with discharge if
the employee sought the Union's help in obtaining
the union scale wage rate.
On or about September 9, 1980, Respondent dis-
charged and thereafter failed and refused to rein-
state its employee, Tod Tumbiolo, because of his
having engaged in union and/or other protected
concerted activities for the purpose of collective
bargaining or other mutual aid or protection.
Accordingly, we find that by threatening an em-
ployee with discharge if the employee sought the
Union's help in obtaining the union scale wage
rate, Respondent interfered with, restrained, and
coerced employees in the exercise of the rights
guaranteed them by Section 7 of the Act, thereby
violating Section 8(a)(1) of the Act. We further
find that, by discharging and refusing to reinstate
Tod Tumbiolo because of his having engaged in
union and/or other protected concerted activities
for the purpose of collective bargaining or other
mutual aid or protection, Respondent discriminated
against its employees in violation of Section 8(a)(l)
and (3) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICE UPON COMMERCE
The activities of Respondent, set forth in section
III, above, occurring in connection with its oper-
ations described in section I, above, have a close,
intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and
tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of com-
merce.
V. THE REMEDY
Having found that Respondent has engaged in
unfair labor practices within the meaning of Sec-
tion 8(a)(l) and (3) of the Act, we shall order that
it cease and desist therefrom, and take certain af-
firmative action designed to effectuate the purposes
and policies of the Act. We shall order Respondent
to offer Tod Tumbiolo immediate and full rein-
statement to his former job or, if that job no longer
exists, to a substantially equivalent position, with-
out prejudice to his seniority or any other rights or
privileges previously enjoyed, and to make him
whole for any loss of earnings he may have suf-
fered by reason of the discrimination against him in
accordance with the Woolworth formula,3 with in-
terest thereon computed in accordance with the
policy set out in Isis Plumbing & Heating Co., 138
NLRB 716 (1962), and Florida Steel Corporation,
231 NLRB 651 (1977). 4 We shall also require Re-
spondent to post a notice informing its employees
of the remedy in this case.
F. W Woolworth Company. 90 NLRB 289 (1950).
' In accordance with his partial dissent in Olympic Medical Corporation.
250 NLRB 146 (1980), Member Jenkins would award interest on the
backpay due based on the formula set forth therein
583
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Respondent Ashland Construction Company
and Simon & Clemency, Inc., Architects, is an em-
ployer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Local 41, Laborers International Union of
North America, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By discharging and refusing to reinstate Tod
Tumbiolo because of his having engaged in union
and/or other protected concerted activities, Re-
spondent has engaged in discrimination in violation
of Section 8(a)(3) of the Act.
4. By the aforesaid discrimination against Tod
Tumbiolo, and by threatening an employee with
discharge if the employee sought the Union's help
in obtaining the union scale wage rate, Respondent
has interfered with, restrained, and coerced em-
ployees in the exercise of the rights guaranteed
them by Section 7 of the Act, and thereby has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Ashland Construction Company and Simon &
Clemency, Inc., Architects, Chicago, Illinois, and
Munster and Merrillville, Indiana, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in or activities on
behalf of any labor organization by discharging
employees or by otherwise discriminating against
them in their hire or tenure of employment.
(b) Threatening to discharge employees if they
seek union help.
(c) 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 which
the Board finds will effectuate the policies of the
Act:
(a) Offer Tod Tumbiolo immediate and full rein-
statement to his former job or, if that job no longer
exists, to a substantially equivalent position, with-
out prejudice to his seniority or any other rights or
privileges previously enjoyed and make him whole
for any loss of pay suffered by reason of the dis-
crimination practiced against him in the manner de-
scribed above in the section entitled "The
Remedy."
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copy-
ing, all payroll records, social security payment re-
cords, 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 Respondent's Munster and Merrill-
ville, Indiana, facilities copies of the attached
notice marked "Appendix." 5 Copies of said notice,
on forms provided by the Regional Director for
Region 13, after being duly signed by Respondent's
representative, shall be posted by Respondent im-
mediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices
to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by
any other material.
(d) Notify the Regional Director for Region 13,
in writing, within 20 days from the date of this
Order, what steps Respondent has taken to comply
herewith.
b In the event that 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order 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
WE WILL NOT discourage membership in or
activities on behalf of any labor organization
by discharging employees or by otherwise dis-
criminating against them in their hire or tenure
of employment.
WE WILL NOT threaten to discharge employ-
ees if they seek union help.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in their exercise of the rights guaranteed
them by Section 7 of the National Labor Rela-
tions Act, as amended.
WE WILL offer Tod Tumbiolo immediate
and full reinstatement to his former position
or, if that position no longer exists, to a sub-
584
ASHLAND CONSTRUCTION COMPANY
stantially equivalent position, without preju-
dice to his seniority or any other rights or
privileges previously enjoyed, and WE WILL
make him whole for any loss of pay he may
have suffered by reason of the discrimination
practiced against him, with interest.
ASHLAND CONSTRUCTION COMPANY
AND SIMON & CLEMENCY, INC., AR-
CHITECTS
585