Gardner Bros.

National Labor Relations Board - Board Decisions

Aug 31, 1992

308 N.L.R.B. 665 (N.L.R.B. 1992)

665
308 NLRB No. 91
GARDNER BROS.
Gardner Brothers, Inc. and Ronald Bryant. Case
20–CA–24047
August 31, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
Upon a charge filed by Ronald Bryant, an Individ-
ual, on June 5, 1991, the General Counsel of the Na-
tional Labor Relations Board issued a complaint on
July 29, 1991, against Gardner Brothers, Inc., the Re-
spondent, alleging that it has violated Section 8(a)(1)
and (3) of the National Labor Relations Act. Although
properly served copies of the charge and complaint,
the Respondent has failed to file an answer.
On August 3, 1992, the General Counsel filed a Mo-
tion for Summary Judgment. On August 7, 1992, 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 re-
sponse. The allegations in the motion are therefore un-
disputed.
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. The complaint states that unless an answer
is filed within 14 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 allegations in the Motion for Summary
Judgment disclose that the acting Regional attorney, by
letter dated June 17, 1992, advised the Respondent that
unless an answer was received by June 24, 1992, a
Motion for Summary Judgment would be filed.
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.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a California corporation, with an
office and place of business in San Leandro, Califor-
nia, has been engaged in the building and construction
industry as a miscellaneous steel contractor. During the
12-month period ending December 31, 1990, the Re-
spondent, in the course and conduct of its business op-
erations, performed services valued in excess of
$50,000 for Dillingham Construction, which meets the
applicable Board standard for the assertion of jurisdic-
tion on a direct basis. We find that the Respondent is
an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
District Council of Iron Workers of the State of
California and Vicinity (District Council), and Iron
Workers Local Union 377, International Association of
Bridge, Structural and Ornamental Iron Workers,
AFL–CIO (Local 377) are labor organizations within
the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICE
On or about April 10, 1991, the Respondent laid off
and since that date has failed and refused to recall em-
ployee Ronald Bryant. The Respondent engaged in the
above-described conduct because the employee joined,
supported, or assisted a labor organization, and en-
gaged in concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection, and
in order to discourage employees from engaging in
such activities or other protected concerted activities.
We therefore find that the April 10, 1991 layoff of em-
ployee Ronald Bryant violated Section 8(a)(3) and (1)
of the Act.
CONCLUSIONS OF LAW
1. By laying off employee Ronald Bryant on April
10, 1991, the Respondent has engaged in unfair labor
practices affecting commerce within the meaning of
Section 8(a)(3) and (1) and Section 2(6) and (7) of the
Act.
2. By laying off and refusing to recall employee
Ronald Bryant, the Respondent has discriminated, and
is discriminating, in regard to the hire or tenure or
terms or conditions of employment of its employees,
thereby discouraging membership in a labor organiza-
tion, and the Respondent thereby has been engaging in
unfair labor practices within the meaning of 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 de-
signed to effectuate the policies of the Act.
Having found that the Respondent has unlawfully
laid off Ronald Bryant, we shall order it to offer him
immediate and 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 or privileges previously enjoyed, and to
make him whole for any loss of earnings and other
benefits he may have suffered as a result of the Re-
spondent’s unlawful conduct. Backpay shall be com-
puted as prescribed in F. W. Woolworth Co., 90 NLRB
666 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
289 (1950), with interest to be computed as prescribed
in New Horizons for the Retarded, 283 NLRB 1173
(1987).
ORDER
The National Labor Relations Board orders that the
Respondent, Gardner Brothers, Inc., San Leandro, Cali-
fornia, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Laying off employees for engaging in union and
other protected concerted activities.
(b) Discriminating in regard to the hire or tenure or
terms or conditions of employment of its employees.
(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 policies of the Act.
(a) Offer employee Ronald Bryant immediate and
full reinstatement to his former position or, if that job
no longer exists, to a substantially equivalent position,
without prejudice to his seniority or other rights or
privileges previously enjoyed, and make him whole for
any loss of earnings and other benefits he may have
suffered, in the manner set forth in the remedy section
of this decision.
(b) Remove from the files any reference to the un-
lawful layoff of Ronald Bryant and notify him in writ-
ing that this has been done and that the layoff 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 copying, all
payroll records, social security payment records, time-
cards, 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 San Leandro, California,
copies of the attached notice marked ‘‘Appendix.’’1
Copies of the notice, on forms provided by the Re-
gional Director for Region 20, after being signed by
the Respondent’s authorized representative, shall be
posted by the Respondent immediately upon receipt
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable 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 Re-
spondent has taken to comply.
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
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT lay off our employees for engaging
in union and other protected concerted activities.
WE WILL NOT discriminate in regard to the hire or
tenure or terms or conditions of employment of our
employees.
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 offer employee Ronald Bryant immediate
and full reinstatement to his former position or, if that
job no longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority or other rights
or privileges previously enjoyed, and we will make
him whole for any loss of earnings.
WE WILL remove from the files any reference to the
unlawful layoff of Ronald Bryant and WE WILL notify
him in writing that this has been done and that the lay-
off will not be used against him in any way.
GARDNER BROTHERS, INC.