Energy Concepts, Inc.

342 NLRB No. 72 Energy Concepts, Inc. and Sheet Metal Workers’ In- ternational Association, Local Union No. 19. Cases 4–CA–32928, 4–CA–32929, and 4–CA– 32930 July 30, 2004 DECISION AND ORDER BY MEMBERS SCHAUMBER , WALSH, AND MEISBURG The General Counsel seeks a default judgment in this case on the ground that the Respondent has failed to file an answer to the consolidated complaint. Upon charges and amended charges filed by the Union on March 24 and May 20, 2004, respectively, the General Counsel issued the consolidated complaint on May 20, 2004 against Energy Concepts, Inc., the Respondent, alleging that it has violated Section 8(a)(1) and (3) of the Act. The Respondent failed to file an answer. On July 9, 2004, the General Counsel filed a Motion for Default Judgment with the Board. On July 13, 2004, 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 Default 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. In addition, the consolidated complaint affirma- tively stated that unless an answer was filed by June 3, 2004, all the allegations in the consolidated complaint would be considered admitted. Further, the undisputed allegations in the General Counsel’s motion disclose that the Region, by letter dated June 29, 2004, notified the Respondent that unless an answer was received by July 6, 2004, a motion for default judgment would be filed. In the absence of good cause being shown for the fail- ure to file a timely answer, we grant the General Coun- sel’s motion for default judgment. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a Pennsylvania corporation with a facility in Bensalem, Pennsylvania, has been engaged in performing heating, ventilation, and air conditioning installation and related services. During the 12-month period preceding the issuance of the con- solidated complaint, the Respondent, in conducting its business operations described above, purchased and re- ceived at its facility goods valued in excess of $50,000 directly from points outside the Commonwealth of Penn- sylvania, and performed services valued in excess of $50,000 outside the Commonwealth of Pennsylvania. We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and that Sheet Metal Workers’ Interna- tional Association, Local Union No. 19 (the Union) is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES At all material times, the following individuals held the positions with the Respondent set forth opposite their respective names, and have been supervisors of the Re- spondent within the meaning of Section 2(11) of the Act and agents of the Respondent within the meaning of Sec- tion 2(13) of the Act: John Swain - General Manager Ronald Musser, Jr. - Chief Executive Officer Bill Eberhart - Supervisor On about March 17, 2004, the Respondent, by Bill Eberhart, via a Nextel communication, threatened to dis- charge employees who attended a Union meeting. On or about March 17, 2004, the Respondent, by John Swain, at the Respondent’s facility, threatened to dis- charge employees who were involved with the Union. On or about March 17, 2004, the Respondent dis- charged its employees Armando Taglianetti and Matthew Heiple. On or about March 18, 2004, the Respondent dis- charged its employee Kevin Burger. The Respondent discharged these three employees be- cause they supported the Union. CONCLUSION OF LAW By threatening to discharge employees who attended a union meeting or who were involved with the Union, the Respondent has interfered with, restrained, and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act, in violation of Section 8(a)(1) of the Act. By discharging employees Kevin Burger, Matthew Heiple, and Armando Taglianetti, the Respondent has discriminated in regard to the hire or tenure or terms and conditions of employment of its employees, thereby dis- couraging membership in a labor organization, in viola- tion of Section 8(a)(3) and (1) of the Act. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 The Respondent’s unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, we shall order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. Specifically, having found that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging Kevin Burger, Matthew Heiple, and Armando Taglianetti, we shall order the Re- spondent to offer the discriminatees full reinstatement to their former jobs or, if those jobs no longer exist, to sub- stantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously en- joyed, and to make them whole for any loss of earnings and other benefits suffered as a result of the discrimina- tion against them. Backpay shall be computed in accor- dance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as prescribed in New Horizons for the Re- tarded, 283 NLRB 1173 (1987). The Respondent shall also be required to remove from its files all references to the unlawful discharges of Bur- ger, Heiple, and Taglianetti, and to notify them in writing that this has been done and that the discharges will not be used against them in any way. ORDER The National Labor Relations Board orders that the Respondent, Energy Concepts, Inc., Bensalem, Pennsyl- vania, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Threatening to discharge employees who attend a union meeting or who are involved with Sheet Metal Workers’ International Association, Local Union No. 19, or any other union. (b) Discharging employees because they support a un- ion. (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) Within 14 days from the date of this Order, offer Kevin Burger, Matthew Heiple, and Armando Taglianetti full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, with- out prejudice to their seniority or any other rights and privileges previously enjoyed. (b) Make whole Kevin Burger, Matthew Heiple, and Armando Taglianetti for any loss of earnings and other benefits resulting from their unlawful discharges, with interest, in the manner set forth in the remedy section of this decision. (c) Within 14 days from the date of this Order, remove from its files all references to the unlawful discharges of Kevin Burger, Matthew Heiple, and Armando Taglianetti, and within 3 days thereafter, notify them in writing that this has been done and that the unlawful dis- charges will not be used against them in any way. (d) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place desig- nated by the Board or its agents, all payroll records, so- cial security payment records, timecards, personnel re- cords and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order. (e) Within 14 days after service by the Region, post at its facility in Bensalem, Pennsylvania, copies of the at- tached notice marked “Appendix.”1 Copies of the notice, on forms provided by the Regional Director for Region 4, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent 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 al- tered, defaced or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facil- ity involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the no- tice to all current employees and former employees em- ployed by the Respondent at any time since March 17, 2004. (f) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to com- ply. APPENDIX NOTICE TO EMPLOYEES Posted by Order of the National Labor Relations Board An Agency of the United States Government 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 Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board. ENERGY CONCEPTS, INC. 3 The National Labor Relations Board has found that we vio- lated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT threaten to discharge employees who at- tend a union meeting or who are involved with Sheet Metal Workers’ International Association, Local Union No. 19, or any other union. WE WILL NOT discharge employees because they sup- port a union. 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, within 14 days from the date of the Board’s Order, offer Kevin Burger, Matthew Heiple, and Ar- mando Taglianetti full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equiva- lent positions, without prejudice to their seniority or any other rights and privileges previously enjoyed. WE WILL make whole Kevin Burger, Matthew Heiple, and Armando Taglianetti for any loss of earnings and other benefits resulting from their unlawful discharges, with interest. WE WILL, within 14 days from the date of the Board’s Order, remove from our files all references to the unlaw- ful discharges of Kevin Burger, Matthew Heiple, and Armando Taglianetti, and within 3 days thereafter, notify them in writing that this has been done and that the unlawful discharges will not be used against them in any way. ENERGY CONCEPTS, INC.