Bo-Ty Plus, Inc.

333 NLRB No. 54 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Bo-Ty Plus, Inc. and Linda Wood Local 929, International Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied Crafts of the United States and Can- ada, AFL–CIO. and Linda Wood. Cases 11– CA–18574 and 11–CB–3052 February 22, 2001 DECISION AND ORDER BY CHAIRMAN TRUESDALE AND MEMBERS HURTGEN AND WALSH Upon a charge filed by the Charging Party on January 31, 2000, the General Counsel of the National Labor Relations Board issued a complaint on April 28, 2000, against Bo-Ty Plus, Inc., the Respondent Employer, al- leging that it has violated Section 8(a)(1) and (3) of the National Labor Relations Act. Upon a charge and amended charges filed by the Charging Party on April 26, July 27, August 29, and September 28, 2000, the General Counsel of the National Labor Relations Board issued an order consolidating cases, consolidated com- plaint and notice of hearing on September 29, 2000, against Bo-Ty Plus, Inc., the Respondent Employer, al- leging that it has violated Section 8(a)(1) and (3) of the National Labor Relations Act and against Local 929, International Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied Crafts of the United States and Canada, AFL–CIO, the Respon- dent Union, alleging that it has violated Section 8(b)(1)(A) and 8(b)(2) of the Act. Although properly served copies of the charges and consolidated complaint, the Respondent Union failed to file an answer. On December 29, 2000, the General Counsel filed a Motion for Partial Summary Judgment with the Board. On January 3, 2001, the Board issued an order transfer- ring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Re- spondent Union 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 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, unless good cause is shown. In addition, the consolidated complaint af- firmatively notes that unless an answer is filed within 14 days of service, all the allegations in the consolidated complaint will be considered admitted. Further, the un- disputed allegations in the Motion for Summary Judg- ment disclose that the Region, by letters dated October 27, 2000, notified both the Respondent Employer and the Respondent Union that unless an answer were received by November 3, 2000, a Motion for Summary Judgment would be filed. The Respondent Employer filed an an- swer on November 3, 2000. The Respondent Union has not filed an answer. In the absence of good cause being shown for the Re- spondent Union’s failure to file a timely answer, we grant the General Counsel’s Motion for Partial Summary Judgment against the Respondent Union.1 On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent Employer, a South Carolina corporation, with a main office located at Traveler’s Rest, South Carolina, has been engaged in the business of providing stage and production labor to vari- ous entities within the State of South Carolina. In the 12- month period preceding issuance of the consolidated complaint, a representative period, the Respondent Em- ployer provided services valued in excess of $50,000 to Volume Services, Inc., a Delaware corporation, which operates and manages the Bi-Lo Center in Greenville, South Carolina. In the 12-month period preceding issu- ance of the consolidated complaint, a representative pe- riod, Volume Services, Inc. purchased and received at its Bi-Lo Center facility in Greenville, South Carolina, goods and materials valued in excess of $50,000 directly from points outside the State of South Carolina. We find that the Respondent Employer is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act2 and that the Respondent Union is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES At all times material herein, Gene Coffy occupied the position of business agent with the Respondent Union and has been and is now an agent of the Respondent Un- ion, acting on its behalf, within the meaning of Section 2(13) of the Act. Since on or about October 26, 1999, the Respondent Employer and the Respondent Union have maintained a practice which provides that the Respondent Union shall be the sole and exclusive source of referrals of employee applicants for employment with the Respondent Em- ployer. 1 The General Counsel’s motion does not seek summary judgment with respect to the unfair labor practice allegations against the Respon- dent Employer. Accordingly, these allegations are severed and re- manded to the Regional Director for further appropriate action. 2 None of the foregoing jurisdictional allegations regarding the Re- spondent Employer were denied by the Respondent Employer in the answer it filed to the consolidated complaint. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 Since on or about October 26, 1999, and continuing thereafter, the Respondent Union, through its officer and agent, Gene Coffy, has failed and refused, and continues to fail and refuse, to register for referral and to refer for employment with the Respondent Employer at its facili- ties in Traveler’s Rest, South Carolina, the following employees: Linda Wood, Lisa Johnson, and Ron Bowlin. The Respondent Union engaged in the acts and con- duct set forth above in retaliation for the above employ- ees having filed internal union charges and/or because of their support for individuals having filed internal union charges, and for other arbitrary, invidious and discrimi- natory reasons. Further, by these acts, the Respondent Union has caused and is causing the Respondent Em- ployer to discriminate against its employees in violation of Section 8(a)(3) of the Act, and the Respondent Union has thereby engaged in unfair labor practices within the meaning of Section 8(b)(2) of the Act. CONCLUSION OF LAW By the acts and conduct described above, the Respon- dent Union has been restraining and coercing employees in the exercise of their rights guaranteed in Section 7 of the Act, and has engaged in unfair labor practices affect- ing commerce within the meaning of Section 8(b)(1)(A) and (2) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent Union has engaged in certain 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 has failed and refused to reg- ister for referral and to refer Linda Wood, Lisa Johnson, and Ron Bowlin for employment with the Respondent Employer in retaliation for the employees’ having filed or supported someone who filed internal union charges, we shall order it to register and refer those employees in a nondiscriminatory manner and to make them whole for any loss of earnings and other benefits suffered as a re- sult 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).3 ORDER The National Labor Relations Board orders that the Respondent Union, Local 929, International Alliance of Theatrical Stage Employees, Moving Picture Techni- cians, Artists and Allied Crafts of the United States and Canada, AFL–CIO, Greenville, South Carolina, its offi- cers, agents, and representatives, shall 1. Cease and desist from (a) Failing and refusing to register for referral, and to refer for employment with the Respondent Employer, 3 This judgment against the Respondent Union does not affect the potential joint and several liability of the Respondent Employer. employees Linda Wood, Lisa Johnson, and Ron Bowlin in retaliation for the employees’ having filed, or sup- ported someone who filed, internal union charges. (b) Causing the Respondent Employer to discriminate against its employees in violation of Section 8(a)(3) of the Act by failing and refusing to register for referral, and to refer for employment with the Respondent Employer, employees Linda Wood, Lisa Johnson, and Ron Bowlin in retaliation for the employees’ having filed, or sup- ported someone who filed, internal union charges. (c) In any like or related manner restraining or coerc- ing 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) Register for referral, and refer for employment with the Respondent Employer, employees Linda Wood, Lisa Johnson, and Ron Bowlin in a nondiscriminatory man- ner. (b) Make Linda Wood, Lisa Johnson, and Ron Bowlin 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 portion 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 referral records and all other records neces- sary 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 business office and meeting hall, copies of the at- tached notice marked “Appendix.”4 Copies of the notice, on forms provided by the Regional Director for Region 11, after being signed by the Respondent Union’s author- ized representative, shall be posted by the Respondent Union and maintained for 60 consecutive days in con- spicuous places including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent Union to ensure that the no- tices are not altered, defaced or covered by any other material. (e) Sign and return to the Regional Director sufficient copies of the notice for posting by Bo-Ty Plus, Inc., if willing, at all places where notices to employees are cus- tomarily posted. (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. 4 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.” STAGE EMPLOYEES IATSE (BO-TY PLUS) 3 Dated, Washington, D.C. February 22, 2001 John C. Truesdale, Chairman Peter J. Hurtgen, Member Dennis P. Walsh, Member (SEAL) NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO MEMBERS 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 the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT fail and refuse to register for referral, and to refer for employment with Bo-Ty Plus, Inc., em- ployees Linda Wood, Lisa Johnson, and Ron Bowlin in retaliation for their having filed, or supported someone who filed, internal union charges. WE WILL NOT cause Bo-Ty Plus, Inc. to discriminate against its employees in violation of Section 8(a)(3) of the Act by failing and refusing to register for referral, and to refer for employment with Bo-Ty Plus, Inc., employ- ees Linda Wood, Lisa Johnson, and Ron Bowlin in re- taliation for the employees’ having filed, or supported someone who filed, internal union charges. WE WILL NOT in any like or related manner restrain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL register for referral, and refer for employ- ment with Bo-Ty Plus, Inc., employees Linda Wood, Lisa Johnson, and Ron Bowlin in a nondiscriminatory manner. WE WILL make Linda Wood, Lisa Johnson, and Ron Bowlin whole for any loss of earnings and other benefits suffered as a result of the discrimination against them. LOCAL 929, INTERNATIONAL ALLIANCE OF THEATRICAL STAGE EMPLOYEES, MOVING PICTURE TECHNICIANS, ARTISTS AND ALLIED CRAFTS OF THE UNITED STATES AND CANADA, AFL–CIO