Southwest Missouri Foundation

National Labor Relations Board - Board Decisions

Sep 26, 1974

213 N.L.R.B. 597 (N.L.R.B. 1974)

SOUTHWEST MISSOURI FOUNDATION 597
Southwest Missouri Foundation and Grading Company
and Thomas Paul Houdashelt . Case 17-CA-5844
September 26, 1974
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:
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
Upon a charge and amended charge filed Novem-
ber 20, 1973, and April 29, 1974, respectively, by
Thomas Paul Houdashelt, herein called Charging
Party, and duly served on Southwest Missouri Foun-
dation and Grading Company, herein called Respon-
dent, the Regional Director for Region 17 of the
National Labor Relations Board issued on May 2 and
8, 1974, respectively, a complaint and an amendment
thereto together with a notice of hearing alleging that
Respondent had engaged in and was engaging in un-
fair labor practices affecting commerce within the
meaning of Sections 8(a)(1) and 2(6) and (7) of the
National Labor Relations Act, as amended. Copies of
the charge and amended charge, complaint and
amendment thereto, and the notice of hearing were
duly served on the Respondent by registered mail.
With respect to the unfair labor practices, the com-
plaint alleges, in substance, that Respondent dis-
charged the Charging Party on November 7, 1973, for
engaging in protected concerted activities, sympa-
thies, and leanings, and failed and refused to reinstate
him until January 8, 1974. The complaint further al-
leges that approval of an informal settlement agree-
ment between the parties purporting to resolve the
alleged unfair labor practices and provide backpay to
the Charging Party was revoked on April 23, 1974, by
the Regional Director due to the Respondent's con-
tinued failure to remit the backpay required thereby.
Respondent did not file an answer to the complaint.
On May 28, 1974, the General Counsel, by counsel,
filed with the Board a motion to transfer the proceed-
ings before the Board and for summary judgment
based upon the Respondent's failure to answer the
complaint. On June 6, 1974, the Board issued a Notice
to Show Cause why the General Counsel's motion
should not be granted and an order transferring the
proceedings before it. No response to the Notice To
Show Cause was filed by Respondent.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
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:
The respondent shall, within 10 days from the
service of the complaint, file an answer thereto.
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 allega-
tion in the complaint not specifically denied or
explained in an answer filed, unless the respon-
dent 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 the
Respondent herein specifically states that unless an
answer to the complaint was filed within 10 days from
the 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." According to the
uncontroverted allegations of the Motion for Summa-
ry Judgment, the complaint and amendment thereto
were served on the Respondent by registered mail,
copies of the return receipts of service being attached
to the motion as exhibits. Thereafter, the General
Counsel, by counsel, advised the Respondent by letter
dated May 13, 1974, addressed to Respondent's presi-
dent, of the necessity of answering the complaint by
May 20, 1974, to forestall the instant Motion for Sum-
mary Judgment.
No answer to the complaint, nor a response to the
Notice To Show Cause has been filed by the Respon-
dent. No good cause having been shown for failing to
answer or respond, the allegations of the complaint
stand admitted to be true, and are so found, in accor-
dance with the rule set forth above. Accordingly, we
shall grant the General Counsel's Motion for Summa-
ry Judgment.
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
Respondent is a Missouri corporation engaged in
the building and construction business at its Oronogo,
Missouri, facility. In the course and conduct of its
business operations, the Respondent annually sells
goods and services having a value in excess of $50,000
213 NLRB No. 84
598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
directly to firms or enterprises located in States other
than the State of Missouri.
We find , on the basis of the foregoing , that Respon-
dent is , and at all times material hereto has been, an
employer engaged in commerce within the meaning of
Section 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
The United Brotherhood of Carpenters and Joiners
of America, AFL-CIO, Carpenters District Council
of Kansas City and Vicinity, is now, and at all times
material hereto has been , a labor organization within
the meaning of Section 2(5) of the Act.
8(a)(1) of the Act by unlawfully discharging employee
Thomas Paul Houdashelt on November 7, 1973, and
by failing and refusing to reinstate said employee until
January 8, 1974, we shall order that Respondent make
whole said employee for any loss of earnings suffered
by such conduct by payment of a sum of money equal
to that which he normally would have earned as wag-
es from the date of discharge to the date of reinstate-
ment, less his net earnings during such period, with
backpay computed on a quarterly basis in the manner
established by the Board in F. W. Woolworth Compa-
ny, 90 NLRB 289, 294 (1950), and with interest there-
on as prescribed by the Board in Isis Plumbing &
Heating Co., 138 NLRB 716 (1962).
The Board, on the basis of the foregoing facts and
the entire record, makes the following:
III. THE UNFAIR LABOR PRACTICES
On or about November 7, 1973, the Respondent
discharged and, continuing to January 8, 1974, failed
to reinstate employee Thomas Paul Houdashelt,
Charging Party herein , because of his engaging in
protected concerted activities, sympathies, and lean-
ings.
By the above-mentioned conduct, we find that Re-
spondent did interfere with , restrain , and coerce the
Charging Party in his rights guaranteed by Section 7
of the Act, and thereby engaged in and is engaging in
unfair labor practices within the meaning of Section
8(a)(1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with its operations
described in section I, above , have a close , intimate,
and substantial relationship to trade , traffic, and com-
merce among the several States and tend to lead to
labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the mean-
ing of Section 8(a)(1) of the Act, we shall order that
it cease and desist therefrom and take certain affirma-
tive action designed to effectuate the policies of the
Act.
Having found that the Respondent violated Section
CONCLUSIONS OF LAW
1. Southwest Missouri Foundation and Grading
Company is an employer engaged in commerce with-
in the meaning of Section 2(6) and (7) of the Act.
2. The United Brotherhood of Carpenters and
Joiners of America , AFL-CIO, Carpenters District
Council of Kansas City and Vicinity , is a labor orga-
nization within the meaning of Suction 2 (5) of the Act.
3. By discharging and failing and refusing to rein-
state Charging Party on November 7, 1973, and con-
tinuing said conduct until January 8, 1974,
Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(1)
of the Act.
4. The aforesaid unfair labor practices are unfair
labor practices affecting commerce 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 Rela-
tions Board hereby orders that Respondent, South-
west Missouri Foundation and Grading Company,
Oronogo, Missouri, its officers, agents, successors,
and assigns , shall:
1. Cease and desist from:
(a) Discharging and refusing to reinstate employ-
ees for engaging in protected concerted activities,
sympathies, and leanings.
(b) In any like or related manner interfering, with,
restraining , or coercing employees in the exercise of
the rights guaranteed them in Section 7 of the Act.
SOUTHWEST MISSOURI FOUNDATION
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Make whole employee Thomas Paul Houdash-
elt for loss of earnings caused by his unlawful dis-
charge and refusal to reinstate from November 7,
1973, until January 8, 1974, in the manner set forth in
The Remedy section herein.
(b) Post at its Oronogo, Missouri, facility, copies of
the attached notice marked "Appendix." ' Copies of
said notice, on forms provided by the Regional Direc-
tor for Region 17, after being duly signed by
Respondent's representative, shall be posted by Re-
spondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous 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.
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
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.
(d) Notify the Regional Director for Region 17, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
1 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 Pursuant 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
599
WE WILL NOT discharge and refuse to reinstate
employees for engaging in protected concerted
activities, sympathies, and leanings.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce our employees in
the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL make whole employee Thomas Paul
Houdashelt for loss of earnings caused by his
unlawful discharge and refusal to reinstate from
November 7, 1973, until January 8, 1974, in the
manner set forth in the remedy settlement.
SOUTHWEST MISSOURI
FOUNDATION AND GRADING
COMPANY
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice, or compli-
ance with its provisions may be directed to the
Board's Office, 616-Two Gateway Center, Fourth
at State, Kansas City, Kansas 66101, Telephone 816-
374-4518.