Digital World Solutions

326 NLRB No. 121 1 NOTICE: This opinion is subject to formal revision before publication in the Board volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Digital World Solutions and Linda K. Hamp. Case 21–CA–32263 September 30, 1998 DECISION AND ORDER BY MEMBERS FOX, LIEBMAN, AND HURTGEN Upon a charge filed by Linda K. Hamp, an individual, on September 9, 1997, the General Counsel of the Na- tional Labor Relations Board issued a complaint on January 23, 1998, against Digital World Solutions, LLC, the Respondent, alleging that it violated Section 8(a)(1) of the National Labor Relations Act. Although properly served copies of the charge and the complaint, the Re- spondent failed to file an answer. On April 27, 1998, the General Counsel filed a Motion for Summary Judgment. On April 29, 1998, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. Thereafter, Mark Hagan, describing himself as “a member of Digital World Solutions, LLC, and authorized to act on its behalf,” filed an affidavit stating, inter alia, the following: (1) that he will be responsible for ensuring that the Respondent ceases and desists en- gaging in the unfair labor practices it is alleged to have committed; (2) that in April 1998, the Respondent of- fered reinstatement to the two alleged discriminatees, reinstated those individuals to their former positions, and in May 1998, discharged them both for cause; (3) that the Respondent has paid each of the alleged discriminatees $1000 in settlement of the wages and benefits they may have lost as a result of their suspension and/or dis- charges; and (4) that the Respondent will otherwise com- ply with such remedial steps as the General Counsel has requested in his Motion for Summary Judgment. The affidavit does not otherwise respond to, contest, or dis- pute the allegations set forth in the complaint. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Ruling on Motion for Summary Judgment The complaint alleges that the Respondent violated Section 8(a)(1) of the Act by suspending and/or dis- charging employees Linda K. Hamp and Shawn Licht- man because they each engaged in the discussion of overtime pay with the Respondent in the presence of other employees of the Respondent, and that the Respon- dent took those actions in order to discourage other em- ployees from engaging in protected concerted activities. Sections 102.20 and 102.21 of the Board’s Rules and Regulations provide 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 notes that unless an answer is filed within 14 days of service, all allegations in the complaint shall be considered ad- mitted. Further, the undisputed allegations in the Motion for Summary Judgment disclose that the Region, by let- ter dated April 15, 1998, notified the Respondent that unless an answer were received by April 21, 1998, 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.1 On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION The Respondent, a Nevada corporation, at its facility in La Jolla, California, is engaged in the business of mar- keting PrimeStar satellite systems to customers through- out the United States. During a representative 12-month period ending January 15, 1998, the Respondent derived gross revenues in excess of $500,000, and in that same period sold goods and services in connection with its operations valued in excess of $50,000 to customers lo- cated outside the State of California as well as provided services valued in excess of $50,000 to PrimeStar, an enterprise directly engaged in interstate commerce. 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 On August 25, 1997, the Respondent suspended and on August 29, 1997, discharged employee Linda K. Hamp because during August 1997 Hamp had engaged in protected concerted activities by discussing overtime pay with the Respondent in the presence of other em- ployees of the Respondent. On August 25, 1997, the Respondent discharged employee Shawn Lichtman be- cause during August 1997 Lichtman had engaged in protected concerted activities by discussing overtime pay with the Respondent in the presence of other employees of the Respondent. The Respondent took these actions against Hamp and Lichtman in order to discourage other employees from engaging in these or other protected 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 rights guaranteed in Section 7 of the Act. The Respondent has thus engaged in unfair la- bor practices affecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act. 1 With respect to the claims made in the Hagen affidavit regarding reinstatement and payment of backpay to employees Hamp and Licht- man, we note that such matters can be considered in compliance. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 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 employee Linda K. Hamp and discharging employee Shawn Lichtman, we shall order the Respondent to offer them immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, with- out prejudice to their seniority or any other rights or privileges previously enjoyed, and to make them whole for any loss of earnings and other benefits suffered as a result of the unlawful action taken against them. Back- pay shall be computed in accordance with F.W. Wool- worth Co., 90 NLRB 289 (1950), with interest as pre- scribed in New Horizons for the Retarded, 283 NLRB 1173 (1987). The Respondent shall also be required to expunge from its files any and all references to the un- lawful suspension and discharges, and to notify Hamp and Lichtman in writing that this has been done. ORDER The National Labor Relations Board orders that the Respondent, Digital World Solutions, LLC, La Jolla, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Suspending or discharging employees because they discuss overtime pay with the Respondent in the presence of other employees or otherwise engage in pro- tected concerted activities or to discourage other employ- ees from engaging in these or other concerted 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) Within 14 days from the date of this Order, offer Linda K. Hamp and Shawn Lichtman full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed. (b) Make Linda K. Hamp and Shawn Lichtman whole for any loss of earnings and other benefits suffered as a result of the unlawful action taken against them, in the manner set forth in the remedy section of this decision. (c) Within 14 days from the date of this Order, ex- punge from its files any and all references to the unlaw- ful suspension of Linda K. Hamp and the unlawful dis- charge of Hamp and Shawn Lichtman and, within 3 days thereafter, notify Hamp and Lichtman in writing that this has been done. (d) Preserve and, within 14 days of a request, make available to the Board or its agents for examination and copying, all payroll records, social security payment rec- ords, timecards, personnel records and reports, and all other records necessary to analyze the amount of back- pay due under the terms of this Order. (e) Within 14 days after service by the Region, post at its facility in La Jolla, California, copies of the attached notice marked “Appendix.”2 Copies of the notice, on forms provided by the Regional Director for Region 21, 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 25, 1997. (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- testing to the steps that the Respondent has taken to comply. Dated, Washington, D.C. September 30, 1998 Sarah M. Fox, Member Wilma B. Liebman, Member Peter J. Hurtgen, Member (SEAL) NATIONAL LABOR RELATIONS BOARD 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.” DIGITAL WORLD SOLUTIONS, LLC 3 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 the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protection To choose not to engage in any of these protected concerted activities. WE WILL NOT suspend or discharge employees because they discuss overtime pay with us in the presence of other employees or otherwise engage in protected con- certed activities or to discourage other employees from engaging in these or other concerted 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 the Board's Order, offer Linda K. Hamp and Shawn Lichtman full reinstatement to their former jobs, or, if those jobs no longer exist, to substantially equivalent positions, with- out prejudice to their seniority or any other rights or privileges previously enjoyed. WE WILL make Linda K. Hamp and Shawn Lichtman whole for any loss of earnings and other benefits suffered as a result of the unlawful action taken against them. WE WILL, within 14 days from the date of the Board’s Order, expunge from our files any and all references to the unlawful suspension of Linda K. Hamp and the un- lawful discharges of Hamp and Shawn Lichtman, and, WE WILL within 3 days thereafter, notify Hamp and Lichtman in writing that this has been done. DIGITAL WORLD SOLUTIONS, LLC