Trade Force, Inc.

TRADE FORCE, INC. 777 Trade Force, Inc. and International Brotherhood of Electrical Workers, Local Union 429, AFL–CIO. Case 26–CA–20048–1 January 29, 2003 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND ACOSTA The General Counsel seeks summary judgment in this case on the ground that the Respondent has failed to file an answer to the complaint. Upon a charge and amended charges filed by the Union on December 20 and 29, 2000, and April 23 and 27, 2001, the General Counsel issued the complaint on May 30, 2001, against Trade Force, 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 August 29, 2001, the General Counsel filed a Mo- tion for Summary Judgment with the Board. On August 31, 2001, 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. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Ruling on Motion for Summary 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 states that unless an answer is filed within 14 days of service, all the allegations in the complaint will be considered admitted. Further, the undisputed allegations in the Mo- tion for Summary Judgment disclose that the Region, by letters dated August 1 and 3, 2001, with enclosed copies of the complaint, notified the Respondent that unless an answer was received by August 10, 2001, a Motion for Summary 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 Summary Judgment insofar as the com- plaint alleges that the Respondent has committed viola- tions of Section 8(a)(1) and (3) of the Act. Several of those alleged violations are the unlawful refusals to hire and/or consider for hire three job applicants. Thus, the complaint alleges and, by its failure to file an answer, the Respondent has admitted, that since two different dates in August 2000, the Respondent “has failed to hire and/or consider for hire” three named applicants because they “assisted the Union and engaged in concerted activities, and to discourage employees from engaging in these ac- tivities.” We find that the undisputed complaint allega- tions are sufficient to establish these violations warrant- ing a cease-and-desist order under the standard set forth in FES, 331 NLRB 9 (2000). Nevertheless, in accord with Jet Electric Co., 334 NLRB 1059 (2001), we find that the complaint allega- tions are insufficient to enable us to determine the appro- priate remedy for these violations. Under FES, in order to justify an affirmative backpay and instatement rem- edy, the General Counsel must show during the unfair labor practice proceeding that there were openings for the applicants. Id. at 14. “Proof of the availability of openings cannot be deferred to the compliance stage of the proceeding.” Id. Here, the complaint fails to allege how many openings the Respondent had available. Ac- cordingly, we shall hold in abeyance a final determina- tion of the appropriate affirmative remedy for the Re- spondent’s refusal-to-hire or consider-for-hire violations pending a remand of this case for a hearing before an administrative law judge on the limited issue of the num- ber of openings that were available to the discriminatee applicants.1 On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a Georgia cor- poration, with its corporate offices in Lithonia, Georgia, and an office and place of business in Nashville, Tennes- see (the Respondent’s Nashville facility), has been en- gaged in the business of supplying electricians and help- ers to electrical contractors in the building and construc- tion industry. During the calendar year ending Decem- ber 31, 2000, the Respondent, in conducting its business operations described above, performed services valued in excess of $50,000 in States other than the State of Geor- gia. We find that the Respondent is an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that International Brotherhood 1 Whether, or the extent to which, an affirmative remedy for the re- fusal-to-consider violations is warranted will depend on whether the evidence demonstrates that openings were available warranting the more comprehensive remedy of an instatement order for the refusal-to- hire violations. Budget Heating & Cooling, 332 NLRB No. 132 fn. 3 (2000) (not published in Board volumes). Nothing contained in this decision requires a hearing if, in the event that the General Counsel amends the complaint, the Respondent fails to answer, thereby admitting evidence that would permit the Board to resolve the remedial instatement and backpay issue. In those circum- stances, the General Counsel may renew the Motion for Summary Judgment with respect to this specific affirmative remedy. See Jet Electric Co., supra at 1059 fn. 2. 338 NLRB No. 99 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 778 of Electrical Workers, Local Union 429, AFL–CIO, 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 set forth opposite their names and have been supervisors of the Respondent within the meaning of Section 2(11) of the Act and agents of the Respondent within the meaning of Section 2(13) of the Act: Wayne Reynolds General Manager Misty Johnson Comanager and Account Executive David Martin Comanager On August 29, 2000, the Respondent, by General Manager Reynolds at the Respondent’s Nashville facil- ity, interrogated an employee about the employee’s union membership and activities. On August 31, 2000, the Respondent, by General Manager Reynolds at the Respondent’s Nashville facil- ity, told employee applicants that its employees were not allowed to wear union shirts or hats, and impliedly told employee applicants that they could not be employed by the Respondent if they wanted to wear union shirts or hats or otherwise advertise for the Union. On August 31, 2000, the Respondent, by Comanager Misty Johnson, and on September 5, 2000, by Coman- ager David Martin, at the Respondent’s Nashville facil- ity, interrogated employees about the employees’ union membership and activities. Since about August 29, 2000, the Respondent has failed to hire and/or consider for hire Seyfettin Akar. Since about August 31, 2000, the Respondent has failed to hire and/or consider for hire Michael B. Bearden and Ronnie N. Hastings. The Respondent failed to hire and/or consider for hire Akar, Bearden, and Hastings because they assisted the Union and engaged in concerted activities, and to dis- courage employees from engaging in these activities. CONCLUSION OF LAW By the acts and conduct described above, the Respon- dent has interfered with, restrained, and coerced employ- ees in the exercise of the rights guaranteed in Section 7 of the Act, and has discriminated in regard to the hire or tenure or terms and conditions of employment of its em- ployees, thereby discouraging membership in a labor organization, and has thereby engaged in unfair labor practices affecting commerce within the meaning of Sec- tion 8(a)(1) and (3) of the Act. The Respondent’s unfair labor practices affect commerce 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 has violated Section 8(a)(3) and (1) by failing to hire or to consider for hire Seyfettin Akar, Michael B. Bearden, and Ronnie N. Hastings, we shall order the Respondent to remove from its files all references to the unlawful refusal to hire or consider for hire and to notify the discriminatees in writing that this has been done, and that the unlawful conduct will not be used against them in any way.2 ORDER The National Labor Relations Board orders that the Respondent, Trade Force, Inc., Lithonia, Georgia, and Nashville, Tennessee, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Interrogating employees about their union member- ship and activities. (b) Telling applicants for employment that its employ- ees are not allowed to wear union shirts or hats. (c) Impliedly telling applicants for employment that they could not be employed by the Respondent if they wanted to wear union shirts or hats or otherwise adver- tise for the Union. (d) Failing to hire and/or consider for hire applicants because they assist the Union and engage in concerted activities, and to discourage employees from engaging in these activities. (e) 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, remove from its files all references to the unlawful failure to hire and to consider for hire Seyfettin Akar, Michael B. Bearden, and Ronnie N. Hastings, and within 3 days thereafter, notify them in writing that this has been done, and that the unlawful conduct will not be used against them in any way. (b) Within 14 days after service by the Region, post at its facility in Nashville, Tennessee, copies of the attached notice marked “Appendix.”3 Copies of the notice, on 2 As stated above, we shall hold in abeyance the determination of any further appropriate affirmative remedy for the Respondent’s re- fusal-to-hire or refusal-to-consider violations. 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- TRADE FORCE, INC. 779 forms provided by the Regional Director for Region 26, 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 August 29, 2000. (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 com- ply. IT IS FURTHER ORDERED that the issue of how many job openings were available at times relevant to the discrimi- natees’ applications for work is remanded to the Re- gional Director for appropriate action consistent with this Decision and Order. 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. ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” 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 interrogate employees about their union membership and activities. WE WILL NOT tell applicants for employment that our employees are not allowed to wear union shirts or hats. WE WILL NOT impliedly tell applicants for employment that they could not be employed by us if they want to wear union shirts or hats or otherwise advertise for the Union. WE WILL NOT fail to hire and/or consider for hire appli- cants because they assist the Union and engage in con- certed activities, and to discourage employees from en- gaging in these activities. 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, remove from our files all references to the unlawful fail- ure to hire and to consider for hire Seyfettin Akar, Mi- chael B. Bearden, and Ronnie N. Hastings, and WE WILL, within 3 days thereafter, notify them in writing that this has been done, and that the unlawful conduct will not be used against them in any way. TRADE FORCE, INC.