Better Business Bureau of Siouxland

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 176 Better Business Bureau of Siouxland and Workers Have Rights Too. Case 18–CA–16665 September 12, 2003 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND WALSH The General Counsel seeks a default judgment in this case on the ground that the Respondent has withdrawn its answer to the complaint. On a charge filed by Workers Have Rights Too on November 19, 2002, the General Counsel issued the complaint on February 28, 2003, against Better Business Bureau of Siouxland, the Re- spondent, alleging that it has violated Section 8(a)(1) of the Act. The Respondent filed an answer to the com- plaint. On May 6, 2003, however, the Respondent with- drew its answer. On May 19, 2003, the General Counsel filed with the Board a Motion for Default Judgment and brief in sup- port. On May 22, 2003, the Board issued an order trans- ferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Re- spondent filed no response. The allegations in the mo- tion 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. In addition, the complaint affirmatively stated that unless an answer was filed by March 14, 2003, all the allegations in the complaint would be considered admitted. Although the Respondent filed an answer to the com- plaint, the Respondent withdrew its answer on May 6, 2003. The withdrawal of an answer has the same effect as a failure to file an answer, i.e., the allegations in the complaint must be considered to be true.1 Accordingly, we grant the General Counsel’s motion for default judgment. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, an Iowa corpo- ration with an office and place of business in Sioux City, Iowa, (the Respondent’s Sioux City, Iowa facility), has operated a service providing information and dispute 1 See Maislin Transport, 274 NLRB 529 (1985). resolution services for commercial businesses located in the States of Iowa, Nebraska, and South Dakota. During the calendar year ending December 31, 2002, the Respondent, in conducting its business operations described above, performed services valued in excess of $50,000 in states other than the State of Iowa. At all material times, the Council of Better Business Bureaus, Dept. 23, Washington, D.C. (Arlington), has regulated the conduct of the Respondent by requiring the Respondent to abide by its bylaws and standards; by im- plementing policies regarding the operation of the Re- spondent, including its hours of operation and the opera- tion of its board of directors; by evaluating the Respon- dent’s operations every 3 years; by retaining the author- ity to expel the Respondent from the Council of Better Business Bureaus; and by otherwise regulating the opera- tion of the Respondent. In view of the factors described above, at all material times, the Respondent has been a member and integral part of the Council of Better Business Bureaus, Dept. 23, Washington, D.C. (Arlington), a multistate and nonretail enterprise, which provides services similar to those de- scribed above to commercial businesses located through- out the United States. During the time period described above, the Respon- dent and the Council of Better Business Bureaus collec- tively derived gross revenues in excess of $250,000. We find that the Respondent is an Employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES At all material times, Stephanie Hageman held the po- sition of the Respondent’s chief executive officer, and has been a supervisor of the Respondent within the meaning of Section 2(11) of the Act and an agent of the Respondent within the meaning of Section 2(13) of the Act. On about October 31, 2002, the Respondent’s employ- ees Linda Ross and Teresa Bokemper (nee Meyers) con- certedly sent the Respondent’s board of directors and CEO Hageman a letter protesting that the Respondent, by its CEO Hageman, had retaliated against them by chang- ing certain wages, hours, and working conditions. On about November 6, 2002, the Respondent, by its CEO Hageman, at the Respondent’s Sioux City, Iowa facility, engaged in surveillance of employees because of their protected concerted activities, including the conduct described above. On about November 6, 2002, the Respondent sus- pended employees Ross and Bokemper, and, on about November 11, 2002, the Respondent discharged them. 340 NLRB No. 23 BETTER BUSINESS BUREAU OF SIOUXLAND 177 The Respondent suspended and discharged Ross and Bokemper because they engaged in protected concerted activities, including concertedly sending the letter de- scribed above, and to discourage employees from engag- ing in these or other concerted 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 thereby violated Section 8(a)(1) 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)(1) by suspending and discharging employees Linda Ross and Teresa Bokemper (nee Myers), we shall order the Respondent to make them whole for any loss of earnings and other benefits suffered as a result of their unlawful suspensions and discharges. 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). We also shall require the Respondent to expunge from its files all ref- erences to the unlawful suspensions and discharges, and to notify Ross and Bokemper in writing that this has been done and that the unlawful actions will not be used against them in any way. The General Counsel’s supporting brief states that the Respondent ended its business operations as of April 30, 2003, for economic reasons. Accordingly, we also shall order the Respondent, in the event it resumes the same or similar business operations, to offer Ross and Bokemper full reinstatement to their former positions or, if those positions no longer exist, to substantially equivalent posi- tions, without prejudice to their seniority or any other rights or privileges previously enjoyed. Further, because the Respondent ceased operations on April 30, 2003, we shall order it to mail, rather than post, copies of the at- tached notice to employees. ORDER The National Labor Relations Board orders that the Respondent, Better Business Bureau of Siouxland, Sioux City, Iowa, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Engaging in surveillance of employees because of their protected concerted activities. (b) Suspending or discharging employees because they engaged in protected concerted activities, or to discour- age employees from engaging in these activities. (c) 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 Linda Ross and Teresa Bokemper (nee Myers) full reinstatement to their former positions, or, if those posi- tions no longer exist, to substantially equivalent posi- tions, without prejudice to their seniority or other rights and privileges previously enjoyed. (b) Make Linda Ross and Teresa Bokemper (nee Myers) whole for any loss of earnings and other benefits suffered as a result of their unlawful suspension and dis- charge, with interest, in the manner set forth in the rem- edy section of this Decision. (c) Within 14 days from the date of this Order, remove from its files any reference to the unlawful suspension and discharge of Linda Ross and Teresa Bokemper (nee Myers), and within 3 days thereafter, notify them in writ- ing that this has been done and that the unlawful conduct will not be used against them in any way. (d) 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. (e) 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”2 to all employees who have been employed by the Respondent at any time since November 6, 2002. (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- 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.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 178 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 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 engage in surveillance of our em- ployees because of their protected concerted activities. WE WILL NOT suspend or discharge you because you engaged in protected concerted activities, or to dis- courage you from engaging 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, in the event we resume the same or similar business operations, within 14 days thereafter, offer Linda Ross and Teresa Bokemper (nee Myers) full rein- statement to their former positions or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights and privileges previously enjoyed. WE WILL make Linda Ross and Teresa Bokemper (nee Myers) whole for any loss of earnings and other benefits suffered as a result of their suspension and dis- charge, plus interest. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlawful suspension and discharge of Linda Ross and Teresa Bokemper (nee Myers) 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. BETTER BUSINESS BUREAU OF SIOUXLAND