Tapiko Electric Co.

TAPIKO ELECTRICAL CO. 251 Tapiko Electrical Company, LLC and International Brotherhood of Electrical Workers, Local Union No. 575, AFL–CIO. Cases 9–CA–40524 and 9– CA–40597 February 23, 2004 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER AND MEISBURG 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 charges filed on Sep- tember 8 and October 5, 2003, and an amended charge filed on October 27, 2003, the General Counsel issued the consolidated complaint on October 31, 2003, against Tapiko Electrical Company, LLC, the Respondent, alleg- ing that it has violated Section 8(a)(1) and (3) of the Act. The Respondent failed to file an answer. On January 20, 2004, the General Counsel filed a Mo- tion for Default Judgment with the Board. On January 23, 2004, 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 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 consolidated complaint affirma- tively stated that unless an answer was filed within 14 days from service thereof, all the allegations therein would be considered admitted. Further, the undisputed allegations in the General Counsel’s motion disclose that the Region, by letter dated December 16, 2003, notified the Respondent that unless an answer was received by December 22, 2003, 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,1 we grant the General Coun- sel’s Motion for Default Judgment. 1 The consolidated complaint was sent by certified mail to the Re- spondent’s last known business address, but was returned to the Re- gional Office as “undeliverable” due to “no such number/street.” Thereafter, the consolidated complaint was re-sent by regular mail to the address listed for the Respondent’s named statutory agent for ser- vice and the believed address of the Respondent’s alleged owner/managers. It is well established that a respondent’s failure or refusal to claim certified mail or to provide for receiving appropriate On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a domestic lim- ited liability company, with an office and place of busi- ness in Chillicothe, Ohio, has been engaged as an electri- cal contractor in the construction industry doing com- mercial construction. During the 12-month period preceding issuance of the complaint, the Respondent, in conducting its operations described above, performed services valued in excess of $50,000 for customers located within the State of Ohio, which customers, in turn, purchased and received goods valued in excess of $50,000 directly from points located outside the State of Ohio. 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. 575, 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 respective 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: Pat Bosstic Owner/Manager Lisa Bosstic Owner/Manager The Respondent, by Pat Bosstic or Lisa Bosstic: (a) About July 23, 2003, at the Tim Horton jobsite, co- ercively interrogated an employee concerning his union activities and suggested to the employee that the em- ployee quit his employment with the Respondent. (b) About July 30, 2003, at the Tim Horton jobsite, told an employee that if he was trying to organize for the Union he should leave. About August 27, 2003, the Respondent, by Lisa Boss- tic, at the Walgreen jobsite, coercively interrogated an employee concerning the union activities of another em- ployee and told the employee that the Respondent wanted the other employee off the job because the em- ployee was trying to organize the Respondent. service cannot serve to defeat the purposes of the Act. See I.C.E. Elec- tric, Inc., 339 NLRB 247 fn. 2 (2003), and cases cited therein. Further, the failure of the Postal Service to return documents served by regular mail indicates actual receipt. Id. 341 NLRB No. 33 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 252 About August 24, 2003, the Respondent demoted its employee Jeramiah Young and reduced his hourly wage rate. About August 29, 2003, the Respondent discharged its employee Jeramiah Young. Since about September 4, 2003, the Respondent has re- fused to consider for hire and refused to hire applicant William Cole. The Respondent has engaged in the conduct described above because the named employee and applicant joined and assisted the Union and engaged in concerted activi- ties and to discourage employees from engaging in these activities. CONCLUSION OF LAW By the conduct described above, the Respondent has been interfering with, restraining, and coercing employ- ees in the exercise of their rights guaranteed in Section 7 of the Act, in violation of Section 8(a)(1) of the Act. In addition, by demoting employee Jeramiah Young, reduc- ing his hourly wage rate, and discharging him, and by refusing to consider for hire and to hire applicant Wil- liam Cole, the Respondent has been discriminating in regard to the hire or tenure or terms or conditions of em- ployment of employees and applicants, thereby discour- aging membership in a labor organization in violation of Section 8(a)(3) of the Act. The Respondent’s unfair la- bor 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 violated Section 8(a)(3) and (1) by demoting Jeramiah Young, reducing his hourly wage rate, and discharging him, we shall order the Re- spondent to offer Young full reinstatement to his former job, or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed, and to make him whole for any loss of earnings and other bene- fits suffered as a result of the discrimination against him. Backpay shall be computed in the manner set forth in F. W. Woolworth Co., 90 NLRB 289 (1950), with inter- est as prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987). In addition, having found that the Respondent violated Section 8(a)(3) and (1) by refusing to consider for hire and to hire William Cole, we shall order the Respondent to offer him instatement to the position for which he ap- plied or, if that position no longer exists, to a substan- tially equivalent position, without prejudice to his senior- ity or any other rights or privileges he would have en- joyed absent the discrimination against him, and to make him whole for any loss of earnings and other benefits suffered as a result of the discrimination against him. Backpay shall be computed in the manner set forth in F. W. Woolworth Co., supra, with interest as prescribed in New Horizons for the Retarded, supra. Finally, the Respondent shall also be required to re- move from its files any and all references to Young’s unlawful demotion, hourly wage rate reduction, and dis- charge, and the refusal to hire Cole, and to notify Young and Cole in writing that this has been done and that the unlawful conduct will not be used against them in any way. ORDER The National Labor Relations Board orders that the Respondent, Tapiko Electrical Company, LLC, Chilli- cothe, Ohio, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Coercively interrogating employees concerning their union activities and suggesting to them that they quit their employment with the Respondent. (b) Telling employees that if they are trying to organ- ize for a union they should leave. (c) Coercively interrogating employees concerning the union activities of other employees and telling them that the Respondent wants those employees off the job be- cause they are trying to organize the Respondent. (d) Discharging, demoting, or reducing the hourly wage rate of employees, or otherwise discriminating against employees, because they support International Brotherhood of Electrical Workers, Local Union No. 575, AFL–CIO, or any other labor organization, and en- gage in protected concerted activities, or to discourage employees from engaging in such activities. (e) Refusing to consider for hire and to hire applicants for employment because of their union activity. (f) 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, offer Jeramiah Young full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges previously enjoyed. (b) Make Jeramiah Young whole for any loss of earn- ings and other benefits suffered as a result of the dis- TAPIKO ELECTRICAL CO. 253 crimination against him, with interest, in the manner set forth in the remedy section of this decision. (c) Within 14 days from the date of this Order, offer William Cole instatement to the position for which he applied or, if that position no longer exists, to a substan- tially equivalent position, without prejudice to his senior- ity or any other rights or privileges he would have en- joyed absent the discrimination against him. (d) Make William Cole whole for any loss of earnings and other benefits suffered as a result of the discrimina- tion against him, with interest, in the manner set forth in the remedy section of this decision. (e) Within 14 days from the date of this Order, remove from its files any and all references to Jeramiah Young’s unlawful demotion, hourly wage rate reduction, and dis- charge, and the unlawful failure to hire William Cole, and within 3 days thereafter, notify Young and Cole in writing that this has been done and that the unlawful conduct will not be used against them in any way. (f) 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. (g) Within 14 days after service by the Region, post at its facility in Chillicothe, Ohio, copies of the attached notice marked “Appendix.”2 Copies of the notice, on forms provided by the Regional Director for Region 9, 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 July 23, 2003. (h) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- 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.” 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 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 coercively interrogate you concerning your union activities and suggest to you that you quit your employment with us. WE WILL NOT tell you that if you are trying to organize for a union you should leave. WE WILL NOT coercively interrogate you concerning the union activities of other employees and tell you that we want those employees off the job because they are trying to organize us. WE WILL NOT discharge, demote, or reduce the hourly wage rate of employees, or otherwise discriminate against employees, because they support International Brotherhood of Electrical Workers, Local Union No. 575, AFL–CIO, or any other labor organization, and en- gage in protected concerted activities, or to discourage emploees from engaging in such activities. WE WILL NOT refuse to consider for hire and to hire applicants for employment because of their union activ- ity. 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 the Board’s Order, offer Jeramiah Young full reinstatement to his former job or, if that job no longer exists, to a substan- tially equivalent position, without prejudice to his senior- ity or other rights and privileges previously enjoyed. WE WILL make Jeramiah Young whole for any loss of earnings and other benefits suffered as a result of the discrimination against him, with interest. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 254 WE WILL, within 14 days from the date of the Board’s Order, offer William Cole instatement to the position for which he applied or, if that position no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges he would have enjoyed absent the discrimination against him. WE WILL make William Cole whole for any loss of earnings and other benefits suffered as a result of the discrimination against him, with interest. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any and all references to Jeramiah Young’s unlawful demotion, hourly wage rate reduction, and discharge, and the unlawful failure to hire William Cole, and WE WILL, within 3 days thereafter, notify Young and Cole in writing that this has been done and that the unlawful conduct will not be used against them in any way. TAPIKO ELECTRICAL COMPANY, LLC