I.C.E. Electric, Inc.

I.C.E. ELECTRIC, INC. 247 I.C.E. Electric, Inc., Early Warning Security, Inc. and International Brotherhood of Electrical Work- ers, Local Union 317, AFL–CIO. Case 9–CA– 38707 June 11, 2003 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND WALSH The General Counsel seeks a default judgment1 in this case on the ground that the Respondent has failed to file an answer to the consolidated complaint and compliance specification. Upon a charge filed by the Union on Au- gust 21, 2001, the General Counsel issued the complaint and compliance specification on October 25, 2001, against alleged single employer I.C.E. Electric, Inc. and Early Warning Security, Inc. (the Respondent), alleging that the Respondent has violated Section 8(a)(1) and (3) of the Act and setting forth the amount of backpay due. The Respondent failed to file an answer. On January 28, 2002, the General Counsel filed a Mo- tion for Summary Judgment and memorandum in support with the Board. On February 1, 2002, 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 Respondent filed no response. The allega- tions 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 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. Similarly, Section 102.56 of the Board’s Rules and Regulations provides that the allegations in a com- pliance specification shall be deemed admitted if an an- swer is not filed within 21 days from service of a com- pliance specification. In addition, the consolidated com- plaint and compliance specification affirmatively noted that unless an answer to the complaint was filed within 14 days of service, and an answer to the compliance specification was filed within 21 days of service, all the allegations in the complaint and compliance specification would be considered admitted. Further, the undisputed allegations in the General Counsel’s motion disclose that the Region, by letter dated November 30, 2001, notified 1 The General Counsel’s motion requests summary judgment on the ground that the Respondent has failed to file an answer. Accordingly, we construe the General Counsel’s motion as a Motion for Default Judgment. the Respondent that unless an answer was received by December 11, 2001, A Motion for Default Judgment would be filed.2 Nevertheless, the Respondent did not file an answer. 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. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, I.C.E., located at 3901 Brown Street, Ashland, Kentucky, has been an electrical con- tractor engaged in construction work. At all material times, Early Warning, also located at 3901 Brown Street, Ashland, Kentucky, has been engaged in the business of residential/commercial alarm monitoring. At all material times, I.C.E. and Early Warning have been affiliated business enterprises with common offi- cers, ownership, directors, management, and supervision; have formulated and administered a common labor pol- icy; have shared common premises and facilities; have provided services for and made sales to each other; have interchanged personnel with each other and have held themselves out to the public as single-integrated business enterprises. Based on the foregoing, I.C.E. and Early Warning constitute a single integrated business enterprise and a single employer within the meaning of the Act. Based on a projection of its operations since about February 13, 2001, when it commenced the business op- eration described above, the Respondent would annually provide services valued in excess of $50,000 to Patton Construction, Inc., an enterprise located within the Commonwealth of Kentucky. Patton Construction, Inc. is a general contractor engaged in the construction busi- ness and annually performs services valued in excess of $50,000 in states other than the Commonwealth of Ken- tucky. We find that, at all material times, the Respondent has been an employer engaged in commerce within the 2 Copies of the consolidated complaint and compliance specification and the November 30, 2001 letter were sent to the Respondent by certi- fied and regular mail. The copies sent by certified mail were returned to the Regional Office marked “refused” and/or “unclaimed.” The consolidated complaint and compliance specification sent by regular mail was not returned, and the letter sent by regular mail was returned marked “return to sender,” with the Respondent’s address crossed out. It is well settled that a respondent’s failure or refusal to accept certified mail cannot serve to defeat the purposes of the Act. See, e.g., Michigan Expediting Service, 282 NLRB 210 fn. 6 (1986). Further, the failure of the Postal Service to return the copy of the consolidated complaint and compliance specification that was served by regular mail indicates actual receipt of that document. See Lite Flight, Inc., 285 NLRB 649, 650 (1987). Accord: Express Gourmet, 338 NLRB No. 114 (2003). 339 NLRB No. 36 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 248 meaning of Section 2(2), (6), and (7) of the Act and that International Brotherhood of Electrical Workers, Local Union 317, 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, Christopher Hutchinson, presi- dent/CEO, and Bob Hunt, director of operations, have been supervisors of Respondent within the meaning of Section 2(11) of the Act and agents of Respondent within the meaning of Section 2(13) of the Act. Since about March 21, 2001, the Respondent has failed and refused to hire or consider for employment the fol- lowing applicants for employment: Ronald D. Cole Warren G. Spry Charles N. Taylor Since about March 22, 2001, the Respondent has also failed and refused to hire or consider for employment the following applicants for employment: Scott E. Burnett Kevin W. Mullins The Respondent engaged in the conduct described above because the named applicants for employment formed, joined, or assisted the Union and engaged in concerted activities, and to discourage employees from engaging in these activities. CONCLUSION OF LAW By the acts and conduct described above, the Respon- dent has discriminated in regard to hire or tenure or terms or conditions of employment of employees or applicants for employment, thereby discouraging membership in a labor organization in violation of Section 8(a)(3) and (1) of the Act. See Just Electric, Inc., 338 NLRB No. 96 (2003) (not reported in Board volumes) (citing FES, 331 NLRB 9 (2000), supplemental decision 333 NLRB 66 (2001), enfd. 301 F.3d 83 (3d Cir. 2002)). The Respon- dent’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. The compliance speci- fication, which is consolidated with the complaint, states that the General Counsel knows of only three employees who have been hired by the Respondent since March 21, 2001. It further alleges that the first three applicant- discriminatees who applied for employment on March 21, 2001 (Cole, Spry, and Taylor) are entitled to instate- ment to those positions.3 Accordingly, as these allega- tions are uncontroverted, we shall order the Respondent, in the event it resumes the same or similar business op- erations,4 to offer them instatement to jobs for which they applied, or if those jobs no longer exist, to substan- tially equivalent jobs, without prejudice to their seniority or any other rights or privileges they would have enjoyed absent the discrimination against them. We shall further order the Respondent to make Cole, Spry, and Taylor whole for any loss of earnings and other benefits suffered as a result of the discrimination against them, as set forth in the compliance specification, with interest as pre- scribed in New Horizons for the Retarded, 283 NLRB 1173 (1987), minus any tax withholdings required by Federal and State laws.5 In addition, with respect to the other two discrimina- tees (Burnett and Mullins), we find that a refusal-to- consider remedy is appropriate. See FES, supra, 331 NLRB at 14–15. Therefore, we shall order the Respon- dent, in the event it resumes the same or similar business operations, to place Burnett and Mullins in the position they would have been, absent discrimination, for consid- eration for future openings, consider them for the open- ings in accord with nondiscriminatory criteria, and notify 3 In FES, supra, the Board held that “proof of the availability of openings cannot be deferred to the compliance stage of the proceed- ing.” 331 NLRB at 14. Here, the allegations that there were three open- ings are contained in the compliance specification rather than the com- plaint. However, the compliance specification is consolidated with the complaint, and has been presented to the Board simultaneously with the complaint on the General Counsel’s Motion for Default Judgment. In these circumstances, we find that the FES requirement has effectively been satisfied, and that it would serve no purpose to require the General Counsel to issue an amended complaint alleging the same facts that are currently alleged in the consolidated compliance specification. Cf. Jet Electric Co., 334 NLRB 1059 (2001) (holding in abeyance final deter- mination of appropriate remedy for refusal to consider for hire or hire violations pending a remand for a hearing before an administrative law judge, or, alternatively, issuance of an amended complaint and filing of new motion for summary judgment, addressing the number of openings that were available to the eight applicant-discriminatees), supplemental decision 338 NLRB 1148 (2002). 4 The compliance specification states that the Respondent laid off all employees and curtailed all of its business operations as an electrical contractor engaged in construction work on May 4, 2001, and the speci- fication therefore terminates the backpay period on that date. 5 The consolidated complaint and compliance specification requests an order requiring Respondent to “reimburse any discriminatee entitled to a monetary award for any extra Federal and/or state income taxes that may result from a lump sum payment of such award.” Such a remedy would involve a change in Board law. See, e.g., Hendrickson Bros., 272 NLRB 438, 440 (1985), enfd. 762 F.2d 990 (2d Cir. 1985). In light of this, we believe that the appropriateness of this proposed remedy should be resolved after a full briefing by affected parties. See Kloepfers Floor Covering, Inc., 330 NLRB 811 fn. 1 (2000). Because there has been no such briefing in this no-answer case, we decline to include this additional relief in the order here. See Tres Estrellas De Oro, 338 NLRB 503 (2002). I.C.E. ELECTRIC, INC. 249 them, the Union, and the Regional Director in writing of future openings in positions for which Burnett and Mul- lins applied or substantially equivalent positions, until such time as the Regional Director determines the case should be closed. Further, we shall require the Respondent to remove from its files any and all references to the unlawful fail- ure and refusal to hire or consider for hire the five dis- criminatees, and to notify them in writing that this has been done. Finally, as the Respondent has ceased operations, we shall order it to mail a copy of the attached notice to the Union and to the last known addresses of its employees in order to notify them of the outcome of this proceeding. ORDER The National Labor Relations Board orders that the Respondent single employer, I.C.E. Electric, Inc. and Early Warning Security, Inc., Ashland, Kentucky, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to hire or to consider for hire employees because they formed, joined, or assisted the International Brotherhood of Electrical Workers, Local Union 317, AFL–CIO and engaged in concerted activi- ties, or to discourage employees from engaging in these activities. (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) In the event the Respondent resumes the same or similar business operations, within 14 days thereafter, offer Ronald D. Cole, Warren G. Spry, and Charles N. Taylor instatement to the positions to which they applied or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights or privileges they would have enjoyed absent the discrimination against them. (b) Make Ronald D. Cole, Warren G. Spry, and Charles N. Taylor whole for any loss of earnings and other benefits suffered as a result of the discrimination against them by paying them the amounts set forth be- low, plus interest and minus tax withholdings required by Federal and State laws, as set forth in the remedy section of this decision. Backpay Benefit Contribution TOTAL Ronald D. Cole $ 689.92 $ 126.20 $ 816.12 Warren G. Spry 2,439.30 126.20 2,565.50 Charles N. Taylor 0 0 0 $ 3,381.62 (c) In the event the Respondent resumes the same or similar business operations, within 14 days thereafter, place Scott E. Burnett and Kevin W. Mullins in the posi- tion they would have been, absent discrimination, for consideration for future openings, consider them for the openings in accord with nondiscriminatory criteria, and notify them, International Brotherhood of Electrical Workers, Local Union 317, AFL–CIO, and the Regional Director for Region 9, in writing, of future openings in positions for which Burnett and Mullins applied or sub- stantially equivalent positions. (d) Within 14 days from the date of this Order, remove from its files any and all references to the unlawful fail- ure and refusal to hire or to consider for hire Ronald C. Cole, Warren G. Spry, Charles N. Taylor, Scott E. Bur- nett, and Kevin W. Mullins, 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. (e) 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 elec- tronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order. (f) Within 14 days after service by the Region, dupli- cate and mail, at its own expense and after being signed by the Respondent’s authorized representative, a copy of the attached notice marked “Appendix”6 to the Union and all employees who have been employed by the Re- spondent at any time since March 21, 2001. (g) 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 MAILED 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 mail and obey this notice. 6 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Mailed by Order of the Na- tional Labor Relations Board” shall read “Mailed Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 250 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 fail and refuse to hire or to consider for hire employees because they form, join or assist the In- ternational Brotherhood of Electrical Workers, Local Union 317, AFL–CIO and engage in concerted activities, or to discourage employees from engaging in these ac- tivities. 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, in the event we resume the same or similar business operations, within 14 days thereafter, offer Ronald D. Cole, Warren G. Spry, and Charles N. Taylor instatement to the positions to which they applied or, if those positions no longer exist, to substantially equiva- lent positions, without prejudice to their seniority or other rights or privileges they would have enjoyed absent the discrimination against them. WE WILL make Ronald D. Cole, Warren G. Spry, and Charles N. Taylor whole for any loss of earnings and other benefits suffered as a result of the discrimination against them by paying them the amounts set forth in the Board’s Order, plus interest and minus tax withholdings required by Federal and State laws. WE WILL, in the event we resume the same or similar business operations, within 14 days thereafter, place Scott E. Burnett and Kevin W. Mullins in the position they would have been, absent discrimination, for consid- eration for future openings, consider them for the open- ings in accord with nondiscriminatory criteria, and notify them, International Brotherhood of Electrical Workers, Local Union 317, AFL–CIO, and the Regional Director for Region 9, in writing, of future openings in positions for which Burnett and Mullins applied or substantially equivalent positions. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any and all references to the unlawful failure and refusal to hire or to consider for hire Ronald C. Cole, Warren G. Spry, Charles N. Taylor, Scott E. Burnett, and Kevin W. Mullins, 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. I.C.E. ELECTRIC, INC., AND EARLY WARNING SECURITY, INC.