Island City Electric

342 NLRB No. 85 James C. Fuller d/b/a Island City Electric and Local 665, International Brotherhood of Electrical Workers, AFL–CIO. Case 7–CA–46152 August 30, 2004 DECISION AND ORDER BY MEMBERS SCHAUMBER, WALSH, AND MEISBURG The General Counsel seeks summary judgment in this case pursuant to the terms of a settlement agreement. Upon a charge filed by the Union on April 21, 2003, the General Counsel issued a complaint on September 29, 2003, against the Respondent, James C. Fuller d/b/a Is- land City Electric, alleging that it has violated Section Section 8(a)(1) and (3) of the Act by discharging em- ployee Troy Nealey. Subsequently, the Respondent and the Union entered into a settlement agreement, which was approved by the Regional Director for Region 7 on January 13, 2004. The settlement agreement required the Respondent to (1) make employee Nealey whole; (2) remove from its files and records any references to Nealey’s discharge and advise him in writing that this has been done; (3) post a notice to employees regarding the complaint allegations; and (4) notify the Regional Director in writing what steps the Respondent had taken to comply with the settlement.1 The agreement also contained the following provision: The Charged Party agrees that in case of non- compliance with any of the terms of this Settlement Agreement by the Charged Party, including but not limited to, failure to make timely installment payments of moneys, and after 15 days notice from the Regional Director of the National Labor Relations Board of such non-compliance without remedy by Charged Party, the Regional Director shall issue complaint in the instant case. Thereafter, the General Counsel may file a mo- tion for summary judgment with the Board on the alle- gations of the just issued complaint concerning the vio- lations alleged therein. Charged Party understands and agrees that the allegations of the aforementioned com- plaint may be deemed to be true by the Board, that it will not contest the validity of any such allegations, and the Board may enter findings, conclusions of law, and an order on the allegations of the aforementioned com- plaint. On receipt of said motion for summary judg- ment the Board shall issue an Order requiring the Charged Party to Show Cause why said Motion of the General Counsel should not be granted. The only issue that may be raised in response to the Board’s Order to 1 The notice to be posted pursuant to the settlement stated that Nealey had waived his right to reinstatement. Show Cause is whether Charged Party defaulted upon the terms of this settlement agreement. The Board may then, without necessity of trial or any other proceeding, find all allegations of the complaint to be true and make findings of fact and conclusions of law consistent with those allegations adverse to the Charged Party, on all issues raised by the pleadings. The Board may then is- sue an Order providing full remedy for the violations found as is customary to remedy such violations, in- cluding but not limited to the provisions of this Settle- ment Agreement. The parties further agree that the Board Order and a U.S. Court of Appeals Judgment may be entered hereon ex parte. By letter dated February 24, 2004, the Regional Direc- tor for Region 7 provided the Respondent with con- formed copies of the settlement agreement, and copies of the Notice to Employees for posting, including instruc- tions for posting. This letter also requested that the Re- spondent return to Region 7 three signed and dated cop- ies of the Notice to Employees. By letter dated April 15, 2004, the Regional Director requested that the Respon- dent cure noncompliance with the terms of the settlement agreement by providing him with copies of the signed and dated Notice to Employees, and confirmation that the notice was posted and that the Respondent had re- moved from its files and records any references to Nealey’s discharge. The April 15 letter further stated that, pursuant to the terms of the settlement agreement, if the Respondent failed to cure its noncompliance by April 30, 2004, the Regional Director would reissue the com- plaint and file a motion for summary judgment. The Respondent did not thereafter comply with the terms set forth in the Regional Director’s April 15 letter. Accord- ingly, the Regional Director reissued the complaint on June 29, 2004. On July 21, 2004, the General Counsel filed a Motion for Summary Judgment with the Board. On July 23, 2004, the Board issued an order transferring the proceed- ing to the Board and a Notice to Show Cause why the motion should not be granted. The Respondent filed no response. The allegations in the motion are therefore undisputed. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Ruling on Motion for Default Judgment According to the uncontroverted allegations in the Mo- tion for Summary Judgment, the Respondent has failed to comply with the settlement agreement by failing to provide the Region with signed and dated copies of the Notice to Employees, and by failing to confirm that it had posted the notice and removed from its files all ref- ISLAND CITY ELECTRIC 2 erences to the discharge of employee Nealey. Conse- quently, pursuant to the provisions of the settlement agreement set forth above, we find that the allegations of the complaint are true.2 Accordingly, we grant the Gen- eral Counsel’s Motion for Summary Judgment. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, with an office and place of business at 110 Carlow Drive, Eaton Rap- ids, Michigan, has been engaged as an electrical contrac- tor in the construction industry, doing residential and commercial construction. The Respondent’s Eaton Rap- ids facility is the sole facility involved in this proceeding. During the calendar year ending December 31, 2002, the Respondent, in the course of conducting its business operations described above, provided services in excess of $50,000 to firms within the State of Michigan which are directly engaged in interstate commerce. 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 Local 665, International Brother- hood of Electrical Workers, AFL–CIO (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, James C. Fuller held the position of the Respondent’s owner and has been a supervisor of the Respondent within the meaning of Section 2(11) of the Act and an agent of the Respondent within the mean- ing of Section 2(13) of the Act. On about April 1, 2003, the Respondent, by its agent James Fuller, discharged employee Troy Nealey. The Respondent discharged Nealey because of his support for, and activities and sympathies on behalf of, the Union and to discourage employees from engaging in these and other protected concerted activities. CONCLUSION OF LAW By discharging employee Troy Nealey, the Respon- dent has discriminated in regard to the hire or tenure or terms and conditions of employment of its employees, thereby discouraging membership in a labor organiza- tion, in violation of Section 8(a)(3) and (1) of the Act. The Respondent’s unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act. 2 See U-Bee, Ltd., 315 NLRB 667 (1994). 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 8(a)(3) and (1) by discharging Troy Nealey, we shall order the Respondent to offer Nealey full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed. We shall also order the Respondent to make Nealey whole for any loss of earnings and other benefits suffered as a result of the discrimination against him. Backpay shall be computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987). The Respondent shall also be required to remove from its files all references to the unlawful discharge of Nealey, and to notify him in writing that this has been done and that the discharge will not be used against him in any way. ORDER The National Labor Relations Board orders that the Respondent, James C. Fuller d/b/a Island City Electric, Eaton Rapids, Michigan, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discharging or otherwise discriminating against employees because they support Local 665, International Brotherhood of Electrical Workers, AFL–CIO, or any other labor organization. (b) 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 Troy Nealey full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights and privileges previously enjoyed. (b) Make whole Troy Nealey for any loss of earnings and other benefits resulting from his unlawful discharge, with interest, in the manner set forth in the remedy sec- tion of this decision. (c) Within 14 days from the date of this Order, remove from its files all references to the unlawful discharge of Troy Nealey, and within 3 days thereafter, notify Nealey in writing that this has been done and that the unlawful discharge will not be used against him in any way. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 3 (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 Eaton Rapids, Michigan, copies of the at- tached notice marked “Appendix.”3 Copies of the notice, on forms provided by the Regional Director for Region 7, 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 April 1, 2003. (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 comply. 3 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.” 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 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 any 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 discharge or otherwise discriminate against employees because they support Local 665, In- ternational Brotherhood of Electrical Workers, AFL– CIO, or any other labor organization. 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 Troy Nealey full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights and privileges previously enjoyed. WE WILL make whole Troy Nealey for loss of earnings and other benefits resulting from his unlawful discharge, 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 discharge of Nealy, and within 3 days thereafter, no- tify him in writing that this has been done and that the unlawful discharge will not be used against him in any way. JAMES C. FULLER D/B/A ISLAND CITY ELECTRIC