Black Diamond Framing

348 NLRB No. 20 Michael Allen Logue d/b/a Black Diamond Framing and Henry Garcia. Case 28–CA–20699 September 27, 2006 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 failed to file an answer to the complaint. Upon a charge filed by Henry Garcia on March 8, 2006, the General Counsel issued the complaint on June 30, 2006, against Michael Allen Logue d/b/a Black Diamond Framing, the Respon- dent, alleging that it has violated Section 8(a)(1) of the Act. The Respondent failed to file an answer. On July 31, 2006, the General Counsel filed a Motion for Default Judgment with the Board. On August 1, 2006, the Board issued an order transferring the proceed- ing 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 a 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 July 14, 2006, the Board could find that the allegations in the complaint are true. Further, the undisputed allegations in the General Counsel’s motion disclose that the Region, by letter dated July 18, 2006, notified the Respondent that unless an answer was received by July 21, 2006, 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, 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, the Respondent has been owned by Mike Logue, a sole proprietor, doing business as Black Diamond Framing. At all material times, the Respondent has maintained an office and place of business in Chandler, Arizona, herein called the Respondent’s facility, where it is en- gaged in business as a building and framing contractor in the construction industry performing commercial con- struction. During the 12-month period ending March 8, 2006, the Respondent, in conducting its business operations de- scribed above, purchased and received at its Chandler, Arizona facility goods valued in excess of $50,000 di- rectly from points outside the State of Arizona and from other enterprises, including Foxworth Galbraith Lumber Company and Alliance Lumber, LLC, located within the State of Arizona, each of which other enterprises had received goods directly from points outside the State of Arizona.1 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 PRACTICE 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. Michael Allen Logue Owner Jaggs (full name unknown) Foreman Pat (last name unknown) Acting Foreman Since in or about February 2006, the Respondent’s employees, including its employee Henry Garcia, en- gaged in concerted activities with other employees for the purposes of mutual aid and protection, by discussing the Respondent’s failure to withhold State and Federal taxes from employees’ wages and reporting this failure to withhold to the appropriate authorities. On or about March 7, 2006, the Respondent dis- charged Garcia. The Respondent discharged Garcia because he en- gaged in the concerted activities described above and to discourage employees from engaging in such activities. CONCLUSION OF LAW By the conduct described above, the Respondent has interfered with, restrained, and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act, 1 The complaint does not specifically allege that the goods purchased by the Respondent from Foxworth Galbraith Lumber Company and Alliance Lumber, LLC, were purchased by the sellers directly from points outside the State of Arizona. The Respondent has failed, how- ever, to raise the issue of whether it meets the Board’s discretionary jurisdictional standards. It is well settled that although the existence of statutory jurisdiction may be raised at any time, the issue of discretion- ary jurisdiction must be timely raised. See Paramedical Specialties Services, 322 NLRB 351 fn. 1 (1996). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 and has thereby engaged in unfair labor practices affect- ing commerce within the meaning of Section 8(a)(1) and 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) of the Act by discharging Henry Garcia, we shall order the Respondent to offer Garcia full reinstatement to his for- mer job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights and privileges previously enjoyed. Fur- ther, we shall order the Respondent to make Garcia whole for any loss of earnings and other benefits suffered as a result of the discharge. 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). The Respondent also shall be required to remove from its files all references to Garcia’s discharge, and to notify him in writing that this has been done and that the dis- charge will not be used against him in any way. ORDER The National Labor Relations Board orders that the Respondent, Michael Allen Logue d/b/a Black Diamond Framing, Chandler, Arizona, its officers, agents, succes- sors, and assigns, shall 1. Cease and desist from (a) Discharging or otherwise discriminating against employees because they engage in concerted activities for the purpose of mutual aid or protection, such as dis- cussing the Respondent’s failure to withhold State and Federal taxes from employees’ wages and reporting the failure to withhold taxes to the appropriate authorities, or to discourage employees from engaging in such activi- ties. (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 Henry Garcia 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 and privileges previously enjoyed. (b) Make Henry Garcia whole for any loss of earnings and other benefits suffered as a result of his unlawful discharge, with interest, in the manner set forth in the remedy section of this decision. (c) Within 14 days from the date of this Order, remove from its files all references to the unlawful discharge of Henry Garcia, and within 3 days thereafter, notify him in writing that this has been done, and that the unlawful discharge will not be used against him 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 electronic 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, post at its facility in Chandler, Arizona, copies of the attached notice marked “Appendix.”2 Copies of the notice, on forms provided by the Regional Director for Region 28, 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 March 7, 2006. (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. 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. 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.” BLACK DIAMOND FRAMING 3 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 activities. WE WILL NOT discharge or otherwise discriminate against you because you engage in concerted activities for the purpose of mutual aid or protection, such as dis- cussing our failure to withhold State and Federal taxes from employees’ wages and reporting our failure to withhold taxes to the appropriate authorities, or to dis- courage you from engaging in such 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 Henry Garcia full reinstatement to his for- mer job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights and privileges previously enjoyed. WE WILL make Henry Garcia whole for any loss of earnings and other benefits resulting from his unlawful discharge, with interest. WE WILL, within 14 days from the date of the Board’s Order, remove from our files all references to the unlaw- ful discharge of Henry Garcia, and WE WILL, within 3 days thereafter, notify him in writing that this has been done, and that the unlawful discharge will not be used against him in any way. MICHAEL ALLEN LOGUE D/B/A BLACK DIAMOND FRAMING