Hoffschneider & Son

National Labor Relations Board - Board Decisions

Jul 18, 1980

250 N.L.R.B. 810 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hoffschneider & Son, and/or Hoffschneider Con-
crete Contractors, Inc., and/or Hoffschneider
Concrete Pumping, Inc. and David I,. Gallegos.
Case 27-CA-6490
July 18, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING ANI) MIEMBRS
JINKINS ANI) TRUI;SD)AI I
Upon a charge and an amended charge filed on
December 31, 1979, and February 27, 1980, respec-
tively, by David Gallegos, an individual, herein
called the Charging Party and duly served on
Hoffschneider & Son, and/or Hoffschneider Con-
crete Contractors, Inc., and/or Hoffschneider Con-
crete Pumping, Inc., herein called the Respondents,
the General Counsel of the National Labor Rela-
tions Board, by the Regional Director for Region
27, issued a complaint and notice of hearing on
February 28, 1980, against Respondents, alleging
that Respondents had engaged in and were engag-
ing 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 Rela-
tions Act, as amended. Copies of the charge, com-
plaint, and notice of hearing before an administra-
tive law judge were duly served on the parties to
this proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on or about the
second week of November 1979, Respondents told
an employee they would not use him anymore if he
joined the union, and that since on or about No-
vember 19, 1979, Respondents have failed and re-
fused to call for employment, or to employ, the
Charging Party because of his union membership
and activities. Respondents failed to file a timely
answer to the complaint.
On June 6, 1980, counsel for the General Coun-
sel filed directly with the Board a Motion for Sum-
mary Judgment based on Respondents' failure to
file an answer. Subsequently, on June 10, 1980, the
Board issued an Order transferring the proceeding
to the Board and a Notice To Show Cause why
the General Counsel's Motion for Summary Judg-
ment should not be granted. Thereafter, Respond-
ents filed a response to the Notice To Show Cause,
a document entitled "Objection to Motion for Sum-
mary Judgment," and an answer to the complaint
denying every allegation and raising affirmative de-
fenses. These documents were received by the
Board on June 23, 1980.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
250 NLRB No. 139
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 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
Respondents herein specifically states that unless an
answer to the complaint is filed within 10 days of
service thereof "all of the allegations in the Com-
plaint shall be deemed to be admitted to be true
and may be so found by the Board." Further, ac-
cording to the uncontroverted allegations of the
Motion for Summary Judgment, counsel for the
General Counsel telephoned Respondents on May
21 and 22, 1980, and on both occasions left mes-
sages for Respondents' coowners, Roger and
Robert L. Hoffschneider. Respondents failed to
return these calls.
In their response to the Notice To Show Cause
and in their Objection to Motion for Summary
Judgment, Respondents allege that even though the
return receipt for the complaint is dated February
29, 1980, they did not have actual notice of the
complaint until June 10, 1980, the date they re-
ceived the Motion for Summary Judgment. They
allege that they were in the process of moving
their offices to a new location on February 29 and
that the complaint, if received, was apparently lost
in the move. The return receipt attached to counsel
for the General Counsel's Motion for Summary
Judgment shows that Respondents did in fact re-
ceive the complaint and notice of hearing on Feb-
ruary 29, 1980, and Respondents do not explain
why they failed to return the phone calls made by
counsel for the General Counsel. We find that Re-
spondents' response does not constitute good cause
under our rules for their failure to file a timely
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10()I:FSCtNIII)1D.R & SON
answer. Therefore, in accordance with the rule set
forth above, the allegations of the complaint are
deemed to be admitted to be true and are so found
by the Board. Accordingly. we hereby grant the
Motion for Summary Judgment.'
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FAC'
I. THI- BUSINISS OF I[HE RESPONDI)NTS
Respondents, Colorado corporations with their
principal places of business in Englewood, Colora-
do, are and have been since November 1979 en-
gaged in providing concrete pumping and cement
finishing services to the construction industry. Re-
spondents are, and have been since November
1979, affiliated business enterprises with common
offices, ownership, directors, management, and su-
pervision; have shared common premises and facili-
ties; have provided services for and made sales to
each other; and have interchanged personnel with
each other. Respondents, in the course and conduct
of their business operations, annually purchase and
receive goods and materials valued in excess of
$50,000 directly from points outside the State of
Colorado and annually provide services valued in
excess of $50,000 directly to employers within the
State of Colorado, which employers are directly
engaged in interstate commerce in that they annu-
ally purchase goods and materials valued in excess
of $50,000 from points outside the State of Colora-
do.
We find, on the basis of the foregoing, that Re-
spondents are, and have been at all times material
herein, a single integrated business enterprise and a
single employer within the meaning of the Act and
engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act, and that it will effectu-
ate the policies of the Act to assert jurisdiction
herein.
II. THE LABOR ORGANIZATION INVOLVED
Laborers Union, Local 8720, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
On or about the second week of November 1979,
Respondents, acting by and through their agents
and coowners Robert L. Hoffschneider and/or
Roger "Rocky" Hoffschneider, told an employee
they would not use him anymore if he joined the
Union. Since on or about November 19, 1979, Re-
spondents have failed and refused to call for em-
i See Comnnupitv Dispoal Snrvil I nc. 223 NlRB 123 (qTho): Pui
Malano d/h/a PM CaraRgc (O, 21hi NL RB 6X8 (1475)
ployment, or to employ, the Charging Party as an
employee because of his membership in and activi-
ties on behalf of the Union.
By the aforesaid conduct Respondents have in-
terfered with, restrained, and coerced their em-
ployees in the exercise of the rights guaranteed in
Section 7 of the Act. and did discriminate, and are
discriminating, in regard to the hire and tenure and
terms and conditions of employment of their em-
ployees for the purpose of discouraging member-
ship in the Union. Accordingly, we find that Re-
spondents did thereby engage in, and are engaging
in, unfair labor practices within the meaning of
Section 8(a)(1) and (3) of the Act.
IV. THE EFFECT OF tHI UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondents set forth in section
III, above, occurring in connection with its oper-
ations described in section 1, 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 Respondents have engaged in
and are engaging in unfair labor practices within
the meaning of Section 8(a)(1) and (3) of the Act,
we shall order that Respondents cease and desist
therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act. We
shall order Respondents to make whole David L.
Gallegos for any loss of earnings he may have suf-
fered as a result of Respondents' discriminatory
failure and refusal to call him for employment or to
employ him, in accordance with the formula set
forth in F. W. Woolworth Company, 90 NLRB 289
(1950), and Florida Steel Corporation, 231 NLRB
651 (1977). See, generally, Isis Plumbing & Heating
Co., 138 NLRB 716 (1962).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCL USIONS OF LAW
1. Respondents Hoffschneider & Son, and/or
Hoffschneider Concrete Contractors, Inc., and/or
Hoffschneider Concrete Pumping, Inc., constitute a
single integrated business enterprise and a single
employer within the meaning of the Act, and are
employers engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. Laborers Union, Local 8720. is a labor organi-
zation within the meaning of Section 2(5) of the
Act.
8 I I
I)1DCISI()NS ()F NAII()NAL I.ABOR RELA'IINS IBO()ARI)
3. By the acts described in section III, above,
Respondents have interfered with, restrained, co-
erced, and discriminated against employees in the
exercise of the rights guaranteed them in Section 7
of the Act, and thereby have engaged in and are
engaging in unfair labor practices within the mean-
ing of Section 8(a)(l) and (3) of the Act.
4. The aforesaid unfair labor practices are unfair
labor practices affecting comerce within the mean-
ing 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 Respondents,
Hoffschneider & Son, and/or Hoffschneider Con-
crete Contractors, Inc., and/or Hoffschneider Con-
crete Pumping, Inc., Englewood, Colorado, their
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Telling their employees they will not use
them anymore if they join the Union.
(b) Discouraging membership in the Union by
discriminatorily failing and refusing to call for em-
ployment or to employ employees because of their
membership in and activities on behalf of the
Union, or by otherwise discriminating in regard to
hire or tenure of employment or any term and con-
dition of their employment.
(c) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of their rights under Section 7 of the Act.
2. Take the following affirmative action which
will effectuate the policies of the Act:
(a) Make whole David L. Gallegos for any loss
of earnings he may have suffered as a result of the
discrimination against him in the manner set forth
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
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 their principal place of business copies
of the attached notice marked "Appendix." 2
! 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
Copies of said notice, on forms provided by the
Regional Director for Region 27, after being duly
signed by Respondents' representative, shall be
posted by Respondents immediately upon receipt
thereof, and be maintained by them for 60 consecu-
tive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by
Respondents to insure that said notices are not al-
tered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 27,
in writing, within 20 days from the date of this
Order, what steps the Respondents have taken to
comply herewith.
Order of the National Labor Relations Board" shall read "Po-,ted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National L[abor Relations Board"
APPENDIX
NOTICE TO EMPI OYEFS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT tell our employees we will
not use them anymore if they join the Union.
WE WI l. NOT discourage membership in the
Union by discriminatorily failing and refusing
to call for employment or to employ employ-
ees because of their membership in and activi-
ties on behalf of the Union, or by otherwise
discriminating in regard to hire or tenure of
employment or any term and condition of
their employment.
WE WIL. NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of their rights under Section
7 of the Act.
WE WILL make whole David L. Gallegos
for any loss of earnings he may have suffered
as a result of our discrimination against him.
HOFFSCHNEIDER & SON, AND/OR
HOFFSCHNEIDER CONCRETE CON-
TRACTORS, INC., AND/OR HOFFSCH-
NEIDER CONCRETE PUMPING, INC.
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