R.C. Electric

1 NOTICE: This opinion is subject to formal revision before publication in the Board volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal er- rors so that corrections can be included in the bound volumes. Ralph C. Garcia, a sole proprietorship d/b/a R.C. Electric and International Brotherhood of Elec- trical Workers, Local No. 234. Case 32–CA– 15516 May 14, 1997 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS FOX AND HIGGINS Upon a charge filed by the Union on June 20, 1996, the General Counsel of the National Labor Relations Board issued a complaint and an order withdrawing approval of settlement1 on January 17, 1997, against Ralph C. Garcia, a sole proprietorship d/b/a R.C. Elec- tric, the Respondent, alleging that it has violated Sec- tion 8(a)(1) and (3) of the National Labor Relations Act. Although properly served copies of the charge and complaint, the Respondent failed to file an answer. On April 21, 1997, the General Counsel filed a Mo- tion for Summary Judgment with the Board. On April 22, 1997, 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 Respond- ent filed no response. The allegations in the motion are therefore undisputed. Ruling on Motion for Summary Judgment Sections 102.20 and 102.21 of the Board’s Rules and Regulations provide that the allegations in the complaint shall be deemed admitted if an answer is not filed within 14 days from service of the complaint, un- less good cause is shown. In addition, the complaint affirmatively notes that unless an answer is filed within 14 days of service, all the allegations in the complaint will be considered admitted. Further, the undisputed al- legations in the Motion for Summary Judgment dis- close that the Region, by letter dated March 11, 1997, notified the Respondent that unless an answer were re- ceived by March 17, 1997, a Motion for Summary Judgment would be filed. In the absence of good cause being shown for the failure to file a timely answer, we grant the General Counsel’s Motion for Summary Judgment. On the entire record, the Board makes the following 1 The order and complaint states that a settlement was approved by the Regional Director for Region 32 on September 13, 1996, but that the Respondent failed to discharge his obligations under the set- tlement agreement. FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a California sole proprietorship with an office and place of business in Salinas, California, has been engaged as an elec- trical contractor in the building and construction indus- try, providing services to customers on both a retail and nonretail basis. During the 12-month period pre- ceding issuance of the complaint, the Respondent, in the course and conduct of its business operations, re- ceived gross revenues in excess of $500,000, pur- chased and received goods and materials valued in ex- cess of $5000 which originated outside the State of California, and provided services valued in excess of $50,000 directly to customers or business enterprises who themselves meet one of the Board’s jurisdictional standards, other than the indirect inflow or indirect outflow standards. 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 the Union is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES On March 19, and April 3, 1996, the Respondent in- terrogated applicants for employment concerning their union membership and/or activities. On April 11, 1996, the Respondent told an applicant for employment that he would not be hired because of his union member- ship and/or activities. Since about March 18, 1996, the Respondent has re- fused to hire James Ray Nichols and Forest Bayer be- cause they joined or assisted the Union or because they engaged in other protected concerted activities for the purpose of mutual aid or protection. CONCLUSION OF LAW By the acts and conduct described above, the Re- spondent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, em- ployees in the exercise of rights guaranteed in Section 7 of the Act, and has thereby engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act. By refusing to hire Nichols and Bayer, the Respond- ent has also discriminated, and is discriminating, in re- gard to the hire or tenure or terms and conditions of employment of its employees, thereby discouraging membership in a labor organization, and has thereby engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(3) and Section 2(6) and (7) of the Act. 323 NLRB No. 132 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 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 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.’’ REMEDY Having found that the Respondent has engaged in certain unfair labor practices, we shall order it to cease and desist and to take certain affirmative action de- signed to effectuate the policies of the Act. Specifi- cally, having found that the Respondent has violated Section 8(a)(3) and (1) by refusing to hire James Ray Nichols and Forest Bayer, we shall order the Respond- ent to offer the discriminatees employment to the posi- tions which they would have had, but for the discrimi- nation against them, or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privi- leges which they would have enjoyed, and to make them whole for any loss of earnings and other benefits suffered as a result of the discrimination against them. 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). ORDER The National Labor Relations Board orders that the Respondent, Ralph C. Garcia, a sole proprietorship d/b/a R.C. Electric, Salinas, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Interrogating applicants for employment concern- ing their Union membership and/or activities. (b) Telling applicants for employment that they will not be hired because of their Union membership and/or activities. (c) Refusing to hire applicants for employment be- cause they join or assist the Union or because they en- gage in other protected concerted activities for the pur- pose of mutual aid or protection. (d) In any like or related manner interfering with, restraining, 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 James Ray Nichols and Forest Bayer employment to positions that they would have had, but for the dis- crimination against them, or, if those positions no longer exist, to substantially equivalent positions, with- out prejudice to their seniority or any other rights or privileges which they would have enjoyed. (b) Make Ray Nichols and Forest Bayer whole for any loss of earnings and other benefits suffered as a result of the discrimination against them, in the manner set forth in the remedy section of this decision. (c) Preserve and, within 14 days of a request, make available to the Board or its agents for examination and copying, all payroll records, social security pay- ment 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) Within 14 days after service by the Region, post at its facility in Salinas, California, copies of the at- tached notice marked ‘‘Appendix.’’2 Copies of the no- tice, on forms provided by the Regional Director for Region 32, after being signed by the Respondent’s au- thorized representative, shall be posted by the Re- spondent 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 no- tices are not altered, 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 facility involved in these pro- ceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Re- spondent at any time since June 20, 1996. (e) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. Dated, Washington, D.C. May 14, 1997 llllllllllllllllll William B. Gould IV, Chairman llllllllllllllllll Sarah M. Fox, Member llllllllllllllllll John E. Higgins, Jr., Member (SEAL) 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 violated the National Labor Relations Act and has or- dered us to post and abide by this notice. 3 R.C. ELECTRIC WE WILL NOT interrogate applicants for employment concerning their membership in International Brother- hood of Electrical Workers, Local No. 234 and/or their union activities. WE WILL NOT tell applicants for employment that they will not be hired because of their union member- ship and/or activities. WE WILL NOT refuse to hire applicants for employ- ment because they join or assist the Union or because they engage in other protected concerted activities for the purpose of mutual aid or protection. 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 this Order, offer James Ray Nichols and Forest Bayer em- ployment to positions that they would have had, but for the discrimination against them, or, if those posi- tions no longer exist, to substantially equivalent posi- tions, without prejudice to their seniority or any other rights or privileges which they would have enjoyed. WE WILL make Ray Nichols and Forest Bayer whole for any loss of earnings and other benefits suffered as a result of the discrimination against them. RALPH C. GARCIA, A SOLE PROPRIETOR- SHIP D/B/A R.C. ELECTRIC