Apex Electric Services, Inc.

344 NLRB No. 47 Apex Electric Services, Inc. and International Broth- erhood of Electrical Workers, Local Union No. 177, AFL–CIO Case 12–CA–24199 March 31, 2005 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND SCHAUMBER The General Counsel seeks a default judgment in this case on the ground that the Respondent has failed to file an answer to the complaint. Upon a charge filed by the Union on December 6, 2004, the General Counsel issued the complaint1 on December 20, 2004, against Apex Electric Services, Inc., the Respondent, alleging that it has violated Section 8(a)(1) and (5) of the Act. The Re- spondent failed to file an answer. On January 13, 2005, the General Counsel filed a Mo- tion for Default Judgment with the Board. On January 21, 2005, the Board issued an order transferring the pro- ceeding 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. 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 complaint affirmatively stated that unless an answer was filed by January 3, 2005, all the allegations in the complaint would be considered admitted. Further, the undisputed allegations in the Gen- eral Counsel’s motion disclose that the Region, by letter dated January 3, 2005, notified the Respondent that unless an answer was received by January 10, 2005, 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. 1 The complaint was served on the Respondent by certified mail on December 20, 2004. The envelope containing the complaint was re- turned to the Region on January 4, 2004. The envelope indicated that service had been refused. On January 5, 2005, the Region served the complaint on the Respondent by regular mail both at the Respondent’s business mailing address, and at the home address of Kenneth Holmes, the Respondent’s president. The copies sent by regular mail were not returned. In addition, on January 5, 2005, the Region left a copy of the complaint at Holmes’ home address. It is well settled that a respon- dent’s failure or refusal to accept certified mail or to provide for appro- priate service cannot serve to defeat the purposes of the Act. See, e.g., I.C.E. Electric, Inc., 339 NLRB 247 fn. 2 (2003), and cases cited there. In any event, the failure of the Postal Service to return documents sent by regular mail indicates actual receipt. Id. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a Florida corpo- ration with an office and place of business located in Jacksonville, Florida (the Respondent’s facility), has been engaged in the nonretail business of electrical con- tracting. During the 12-month period ending July 31, 2004, the Respondent, in conducting its business operations de- scribed above, purchased and received at its Jacksonville, Florida sites, goods and supplies valued in excess of $50,000 from other enterprises, including Consolidated Electric Distributors, Inc., located inside the State of Florida, each of which other enterprises had received those goods and supplies directly from outside the State of Florida. 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 International Brotherhood of Elec- trical Workers, Local Union No. 177, 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, Kenneth B. Holmes, Sr. held the position of president of the Respondent and has been a supervisor of the Respondent within the meaning of Sec- tion 2(11) of the Act and an agent of the Respondent within the meaning of Section 2(13) of the Act. The following employees of the Respondent constitute a unit appropriate for the purposes of collective bargain- ing within the meaning of Section 9(b) of the Act: All electricians, electricians’ helpers, apprentices, la- borers, truck drivers, warehousemen, delivery person- nel, equipment operators, leadmen, and working fore- men employed by the Employer in the greater Jackson- ville, Florida area, excluding all office clerical employ- ees, professional employees, guards, and supervisors as defined in the Act, as amended. On September 23, 2004, the Union was certified as the exclusive collective-bargaining representative of the unit. At all times since September 23, 2004, based on Sec- tion 9(a) of the Act, the Union has been the exclusive collective-bargaining representative of the unit. Since on or about September 21, 2004, on multiple oc- casions, the Union, by letters and otherwise, has re- quested that the Respondent recognize and bargain with it as the exclusive collective-bargaining representative of the unit. DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2 Since on or about September 23, 2004, the Respondent has failed and refused to recognize and bargain collec- tively with the Union as the exclusive collective- bargaining representative of the unit. CONCLUSION OF LAW By the conduct described above, the Respondent has failed and refused to bargain collectively and in good faith with the exclusive collective-bargaining representa- tive of the employees, and has thereby engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (5) and 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 has violated Section 8(a)(1) and (5) by failing and refusing since on or about Septem- ber 23, 2004, to bargain with the Union, we shall order the Respondent, on request, to meet and bargain with the Union as the exclusive collective-bargaining representa- tive of the unit and, if an understanding is reached, to embody the understanding in a signed agreement. To ensure that the employees are accorded the services of their selected bargaining agent for the period provided by the law, we shall construe the initial period of the cer- tification as beginning the date the Respondent begins to bargain in good faith with the Union. Mar-Jac Poultry Co., 136 NLRB 785 (1962); Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964); Burnett Construction Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). ORDER The National Labor Relations Board orders that the Respondent, Apex Electric Services, Inc., Jacksonville, Florida, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to recognize and bargain col- lectively and in good faith with the International Broth- erhood of Electrical Workers, Local Union No. 177, AFL–CIO, as the exclusive collective-bargaining repre- sentative of the employees in the following unit: All electricians, electricians’ helpers, apprentices, la- borers, truck drivers, warehousemen, delivery person- nel, equipment operators, leadmen, and working fore- men employed by the Employer in the greater Jackson- ville, Florida area, excluding all office clerical employ- ees, professional employees, guards, and supervisors as defined in the Act, as amended. (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) On request, meet and bargain with the Union as the exclusive collective-bargaining representative of the unit employees on terms and conditions of employment and, if an understanding is reached, embody the understand- ing in a signed agreement. (b) Within 14 days after service by the Region, post at its facility in Jacksonville, Florida, copies of the attached notice marked “Appendix.”2 Copies of the notice, on forms provided by the Regional Director for Region 12, after being signed by the Respondent’s authorized repre- sentative, shall be posted by the Respondent and main- tained for 60 consecutive days in conspicuous places, including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Re- spondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall du- plicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since September 23, 2004. (c) 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. 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 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 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 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.” APEX ELECTRIC SERVCES 3 Choose representatives to bargain with us on your behalf Act together with other employees for your benefit and protection Choose not to engage in any of these protected ac- tivities. WE WILL NOT fail and refuse to recognize and bargain collectively and in good faith with the International Brotherhood of Electrical Workers, Local Union No. 177, AFL–CIO, as the exclusive collective-bargaining representative of the employees in the following unit: All electricians, electricians’ helpers, apprentices, la- borers, truck drivers, warehousemen, delivery person- nel, equipment operators, leadmen, and working fore- men employed by us in the greater Jacksonville, Flor- ida area, excluding all office clerical employees, pro- fessional employees, guards, and supervisors as defined in the Act. 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, on request, meet and bargain with the Union as the exclusive collective-bargaining representative of the unit employees on terms and conditions of employ- ment, and put in writing and sign any agreement reached. APEX ELECTRIC SERVICES, INC.