Painters & Allied Trades Local 297

National Labor Relations Board - Board Decisions

Mar 10, 1981

254 N.L.R.B. 1296 (N.L.R.B. 1981)

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Inc.)
1980,'
8(b)(l)(A) 2(6)
' A11 dares h e r e ~ n 1980
Judgment,
$50,000
its
$50,000
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Painters and Allied Trades, Local Union No. 297, a/
w International Brotherhood of Painters and
Allied Trades of the United States and Canada,
AFL-CIO-CLC (Kite, and Claude J.
Sowers. Case 25-CB-4130
March 10, 1981
DECISION AND ORDER
Upon a charge filed on April 18, by
Claude J. Sowers, Jr., herein called the Charging
Party, and duly served on Painters and Allied
Trades, Local Union No. 297, a/w International
Brotherhood of Painters and Allied Trades of the
United States and Canada, AFL-CIO-CLC, herein
called the Respondent, the General Counsel of the
National Labor Relations Board, by the Regional
Director for Region 25, issued a complaint and
notice of hearing on May 28, 1980, against Re-
spondent. It alleges that Respondent had engaged
in and was engaging in unfair labor practices af-
fecting commerce within the meaning of Section
and (2) and Section and (7) of the
National Labor Relations Act, as amended. Copies
of the charge, complaint, and notice of hearing
before an administrative law judge were duly
served on the parties to this proceeding. Respond-
ent failed to file an answer to the complaint.
On November 14, counsel for the General Coun-
sel filed directly with the Board a Motion for Sum-
mary Judgment. Subsequently, on November 20,
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 Sum-
mary Judgment should not be granted. Respondent
did not file a response to the Notice To Show
Cause and therefore the allegations of the Motion
for Summary Judgment stand uncontroverted.
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 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
are in
254 NLRB No. 168
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
of service thereof "all of the allegations in the com-
plaint shall be deemed to be admitted to be true
and shall be so found by the Board." Further, ac-
cording to the uncontroverted allegations of the
Motion for Summary counsel for the
General Counsel contacted Respondent's repre-
sentative by telephone on November 3, informed
Respondent's representative as to the function of an
answer, what it should consist of and the necessity
of an answer, and extended the deadline for its re-
ceipt until November 6, 1980. When an answer was
not received by the designated date, counsel for
the General Counsel telephoned Respondent's rep-
resentative on November 7 and urged once again
that Respondent submit an answer to the com-
plaint. To that end, counsel for the General Coun-
sel extended the deadline for receipt of the answer
to November 10. Although Respondent's repre-
sentative stated on November 7 it would submit an
answer, Respondent did not do so. Further, no
such answer had been received by the date of the
General Counsel's Motion for Summary Judgment.
Accordingly, under the rule set forth above, no
good cause having been shown for failure to file an
answer, the allegations of the complaint are
deemed admitted and are found to be true, and we
grant the Motion for Summary Judgment.
On the basis of the entire record, the Board
makes the following:
I . THE BUSINESS OF THE EMPLOYER
The Employer, Kite, Inc., is an Indiana corpora-
tion, with its principal office and places of business
at Indianapolis, Indiana, and with various other
facilities within the State of Indiana, including a fa-
cility at Clinton, Indiana. It is, and has been at all
times material herein, continuously engaged in the
business of painting contracting and related serv-
ices. During the 12-month period ending April 18,
1980, the Employer, in the course and conduct of
its business operations, performed services valued
in excess of in States other than the State
of Indiana, and purchased and received at In-
dianapolis, Indiana, facility, products, goods, and
materials valued in excess of directly from
points outside the State of Indiana.
1297
2(6)
11.
2(5)
111.
2(3)
IV.
8(a)(3)
8(b)(l)(A)
UNFAIR
VI.
8(b)(l)(A)
p e r i ~ d . ~ Backpay
F. W .
(1959),
(1977).3
1.
2(6)
2(5)
2(3)
8(a)(3)
em~loyment,
8(b)(l)(A) and (2) A&.
2(6)
10(c)
bfn:n,on Interna-
rronal .4ssociarion. AFL-CIO (Zinrco Elecrrical
IsIs & 138
backpay
Olymprc .Medical
(1980).
PAINTERS A N D ALLIED TRADES. LOCAL 297
We find, on the basis of the foregoing, that the
Employer is, and has been at all times material
herein, an employer engaged in commerce within
the meaning of Section and (7) of the Act, and
that it will effectuate the policies of the Act to
assert jurisdiction herein.
THE LABOR ORGANIZATION INVOLVED
Respondent Painters and Allied Trades, Local
Union No. 297, a/w International Brotherhood of
Painters and Allied Trades of the United States and
Canada, AFL-CIO-CLC, is, and has been at all
times material herein, a labor organization within
the meaning of Section of the Act.
THE CHARGING PARTY
Claude J. Sowers, Jr., is an employee within the
meaning of Section of the Act.
THE UNFAIR LABOR PRACTICES
On or about April 14, Respondent attempted to
cause, and caused, the Employer to refuse to recall
or reemploy its employee, Claude J. Sowers, Jr., in
order to demand, insist, and require membership or
clearance or permission from it as a condition of
employment.
Accordingly, we find that, by the conduct de-
scribed in the above paragraph, Respondent has at-
tempted to cause, and caused, the Employer to dis-
criminate against Sowers in violation of Section
of the Act, and that by such conduct has
engaged in, and is engaging in, unfair labor prac-
tices within the meaning of Section and
(2) of the Act.
V. THE EFFECT OF THE LABOR

PRACTICES UPON COMMERCE

The activities of Respondent set forth in section
IV, above, occurring in connection with the Em-
ployer's operations described in section I, above,
have a close, intimate, and substantial relationship
to trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of
commerce.
THE REMEDY
Having found that Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section and (2) of the Act,
we shall order that it cease and desist therefrom,
and take certain affirmative action designed to ef-
fectuate the policies of the Act.
Specifically, we shall order that Respondent
Union send a letter to Kite, Inc., with a copy to
Claude J. Sowers, Jr., stating that it has no objec-
tion to Sowers' reinstatement, and further that it af-
firmatively requests that he be reinstated. We shall
further order Respondent to make Sowers whole
for all losses of wages and benefits suffered by him
from the date of the discrimination against him to
the date of his reinstatement by Kite, Inc., to his
former or substantially equivalent position, or to
the date he secures substantially equivalent employ-
ment with some other employer, less net earnings
during this shall be computed in
the set manner prescribed by the Board in
Woolworth Company, 90 NLRB 289 with in-
terest as prescribed in Florida Steel corporation, 23 1
NLRB 651
The Board, upon the basis of foregoing facts and
the entire record, makes the following:
Kite, Inc., is an employer engaged in com-
merce within the meaning of Section and (7)
of the Act.
2. Painters and Allied Trades, Local Union No.
297 a/w International Brotherhood of Painters and
Allied Trades of the United States and Canada,
AFL-CIO-CLC, is a labor organization within the
meaning of Section of the Act.
3. Claude J. Sowers, Jr., is an employee within
the meaning of Section of the Act.
4. By attempting to cause and by causing the
Employer to refuse to recall or reemploy Claude J.
Sowers, Jr., in violation of Section of the
Act in order to demand, insist, and require mem-
bership or clearance or permission from it as a con-
dition of Respondent violated Section
of the
5. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section and (7) of the Act.
ORDER
Pursuant to Section of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Painters and Allied Trades, Local Union No. 297,
a/w International Brotherhood of Painters and
Allied Trades of the United States and Canada,
AFL-CIO-CLC, Clinton, Indiana, its officers,
agents, and representatives, shall:
1. Cease and desist from:
Sheer Meral Workers' Local 355, Sheer Meral Workers'
Producrs). 254 NLRB No.
92 (1981).
See, generally, Plumbing Hearing Co., NLRB 716 (1962).
Member Jenkins would award interest on due based on the
formula set forth in his dissent in Corporarion, 250
NLRB 146
1298
Inc.,
"Ap-
p e n d i ~ . " ~
being signed
V n
ORDER
WlLL
WE W l L L
A/W
AFL-
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Attempting to cause and causing the Employ-
er to refuse to recall or reemploy employees in
order to demand, insist, and require membership or
clearance or permission from Respondent as a con-
dition of employment.
(b) In any like or related manner restraining or
coercing employees in the exercise of rights guar-
anteed 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) Send a letter to Kite, with a copy to
Claude J. Sowers, Jr., stating that it has no objec-
tion to Sowers' reinstatement, and further affirma-
tively requesting that he be reinstated.
(b) Make Claude J. Sowers, Jr., whole for any
loss of earnings suffered by reason of Respondent's
unlawful discrimination against him in the manner
provided above in the section of this Decision enti-
tled, "The Remedy."
(c) Post at its office and meeting halls at Clinton,
Indiana, copies of the attached notice marked
Copies of said notice, on forms provided
by the Regional Director for Region 25, after
duly by Respondent's representative,
shall be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, in-
cluding all places where notices to members 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) Sign and deliver sufficient copies of said
notice to the Regional Director for Region 25 for
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."
posting by Kite, Inc., at its Clinton, Indiana, site
where notices to its employees are customarily
posted, if said Employer is willing to so post.
(e) Notify the Regional Director for Region 25,
in writing, within 20 days from the date of this
Order, what steps the Respondent have been taken
to comply herewith.
APPENDIX

NOTICE TO MEMBERS

POSTED BY OF THE

NATIONAL LABOR RELATIONS BOARD

An Agency of the United States Government

WE NOT attempt to cause and cause
Kite, Inc., to refuse to recall or reemploy em-
ployees in order to demand, insist, and require
membership or clearance or permission from
us as a condition of employment.
NOT in any like or related manner
restrain or coerce employees in the exercise of
rights guaranteed by Section 7 of the Act.
WE WILL send a letter to Kite, Inc., with a
copy to Claude J. Sowers, Jr., stating that we
have no objection to Sowers' reinstatement
and affirmatively requesting that he be rein-
stated.
WE WILL make Claude J. Sowers, Jr., whole
for any loss earnings he suffered by reason of
our unlawful conduct, with interest.
PAINTERS A N D ALLIED TRADES,
LOCAL UNION NO. 297, INTER-
NATIONAL BROTHERHOOD OF PAINT-
ERS AND ALLIED TRADES OF THE
UNITED STATES A N D CANADA,
CIO-CLC