International Services

355 NLRB No. 47 NOTICE: This opinion is subject to formal revision before publication in the bound 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. International Protective Services, Inc. d/b/a Interna- tional Services, Inc. and Kiranjit Gill. Case 20– CA–33500 June 17, 2010 DECISION AND ORDER BY CHAIRMAN LIEBMAN AND MEMBERS SCHAUMBER AND BECKER The General Counsel seeks a default judgment 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 and a first amended charge filed by the Charging Party on July 13 and October 11, 2007, respectively, the General Counsel issued the com- plaint on November 30, 2009, against International Pro- tective Services, Inc. d/b/a International Services, Inc., the Respondent, alleging that it has violated Section 8(a)(3) and (1) of the Act. The Respondent failed to file an answer to the complaint. Thereafter, on January 21, 2010, the General Counsel issued the consolidated com- plaint and compliance specification. Again, the Respon- dent failed to file an answer. On February 25, 2010, the General Counsel filed a Motion for Default Judgment with the Board. Thereaf- ter, on March 2, 2010, the Board issued an order transfer- ring 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 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. Similarly, Section 102.56 of the Board’s Rules and Regulations provides that the allegations in a com- pliance specification will be taken as true if an answer is not filed within 21 days from service of the compliance specification. In addition, the consolidated complaint and compliance specification affirmatively states that unless an answer was received by February 11, 2010, the Board may find, pursuant to a motion for default judg- ment, that the allegations in the complaint and compli- ance specification are true. Further, the undisputed alle- gations in the General Counsel’s motion disclose that the Region, by letter dated February 17, 2010, notified the Respondent that unless an answer was received by Feb- ruary 24, 2010, 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.1 On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a corporation with a place of business at San Francisco International Airport, in California (the Respondent’s facility), has been engaged in providing armed and unarmed security and guard services. During the calendar year ending December 31, 2007, the Respondent, in conducting its business operations described above, provided services valued in excess of $50,000 for FedEx at the San Fran- cisco International Airport, an enterprise within the State of California that is directly engaged in interstate com- merce. We find that the Respondent is an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that SEIU, Local 24/7 IUSO, the Union, 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: Alan Bailey - Vice President Cassandra Mitchell - Branch Manger, San Leandro, CA H. Birdi - Field Supervisor The Respondent and the Union were signatory to a col- lective-bargaining agreement that was in effect through June 30, 2007. 1 The consolidated complaint and compliance specification indicate that the Respondent has filed a petition for reorganization under Chap- ter 11 of the U.S. Bankruptcy Code. It is well established that the insti- tution of bankruptcy proceedings does not deprive the Board of juris- diction or authority to entertain and process an unfair labor practice case to its final disposition. See, e.g., Cardinal Services, 295 NLRB 933, 933 fn. 2 (1989), and cases cited there. Board proceedings fall within the exception to the automatic stay provisions for proceedings by a governmental unit to enforce its police or regulatory powers. See id., and cases cited there; NLRB v. 15th Avenue Iron Works, Inc., 964 F.2d 1336, 1337 (2d Cir. 1992). Accord: Ahrens Aircraft, Inc. v. NLRB, 703 F.2d 23 (1st Cir. 1983). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 The complaint alleges that the Respondent engaged in the following conduct: 1. On about March 2007, the Respondent, by Cassan- dra Mitchell, at the Respondent’s facility: (a) stated she was tired of employees complaining to the Union, that she did not like it, and threatened em- ployees with not protecting them if a client complained about them in the future; (b) threatened employees with discharge if they com- plained to the Union; (c) threatened employees with discipline by H. Birdi because employees complained that H. Birdi performed bargaining unit work. 2. On about June 18, 2007, the Respondent, by Alan Bailey, at the Respondent’s facility: (a) interrogated employees about why they called the Union; (b) threatened employees with unspecified reprisals for calling the Union about a contract violation. 3. On about May 30, 2007, the Respondent disciplined employee Kiranjit Gill. 4. On about June or July 24, 2007, the Respondent suspended employee Kiranjit Gill.2 5. On about August 2, 2007, the Respondent dis- charged employee Kiranjit Gill. The Respondent engaged in the conduct described above in paragraphs 3–5 because Kiranjit Gill assisted the Union and engaged in concerted activities, and to discourage employees from engaging in these activities. CONCLUSIONS OF LAW 1. By the acts and conduct described above, the Re- spondent has been interfering with, restraining, and co- ercing employees in the exercise of the rights guaranteed in Section 7 of the Act in violation of Section 8(a)(1) of the Act. 2. By disciplining, suspending, and discharging Gill, the Respondent has been discriminating in regard to the hire or tenure or terms or conditions of employment of its employees, thereby discouraging membership in a labor organization in violation of Section 8(a)(3) and (1) of the Act. 3. The Respondent’s unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act. 2 The complaint alleges that Gill was suspended on June 24, 2007, but the compliance specification alleges that she was suspended on July 24, 2007. We need not resolve this discrepancy, because in either case, we find that Gill is owed the amount set forth in the compliance speci- fication, plus interest accrued to the date of payment. 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)(3) and (1) by disciplining, suspending, and discharging Kiranjit Gill, we shall order the Respondent, in the event that it resumes the same or similar business operations,3 to offer Kiranjit Gill full reinstatement to her former po- sition, or, if that position no longer exists, to a substan- tially similar position, without prejudice to her seniority and other rights and privileges previously enjoyed. In addition, we shall order the Respondent to make Gill whole for any loss of earnings and other benefits suffered as a result of the discrimination against her, as set forth in the compliance specification, with interest accrued to the date of payment, as prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987), minus tax with- holdings required by Federal and State laws.4 The Re- spondent shall also be required to remove from its files all references to the unlawful discipline, suspension, and discharge of Kiranjit Gill, and to notify her in writing that this has been done and that the unlawful discipline, suspension, and discharge will not be used against her in any way. Finally, because the Respondent ceased opera- tions on April 27, 2009, we shall order it to mail, rather than post, copies of the attached notice to employees. ORDER The National Labor Relations Board orders that the Respondent, International Protective Services, Inc. d/b/a International Services, Inc., San Francisco, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Telling employees that the Respondent’s supervi- sor is tired of employees complaining to the Union and does not like it, and threatening employees with not pro- tecting them if a client complained to the Respondent about them in the future. (b) Threatening employees with discharge if they complained to the Union. 3 The compliance specification states that the Respondent ceased operations on April 27, 2009, and the backpay period ends on that date. 4 Appendix A of the compliance specification sets forth the backpay owed to Gill, with interest calculated through December 31, 2009, using a compound interest formula. As we have indicated in prior cases, we are not prepared at this time to deviate from our current prac- tice of assessing simple interest. See, e.g., Austin Printing Co., 353 NLRB No. 54, slip op. at 3 fn. 3 (2008); Glen Rock Ham, 352 NLRB 516, 516 fn. 1 (2008), citing Rogers Corp., 344 NLRB 504 (2005). INTERNATIONAL SERVICES 3 (c) Threatening employees with discipline because employees complained that the Respondent’s agent per- formed bargaining unit work. (d) Interrogating employees about why they called the Union. (e) Threatening employees with unspecified reprisals for calling the Union about a contract violation. (f) Disciplining, suspending, and discharging employ- ees because they assisted the Union and engaged in con- certed activities, and to discourage employees from en- gaging in these activities. (g) 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 that the Respondent resumes the same or similar business operations, within 14 days thereafter, offer Kiranjit Gill full reinstatement to her former posi- tion, or, if that position no longer exists, to a substan- tially equivalent position, without prejudice to her senior- ity or any other rights or privileges previously enjoyed. (b) Make Kiranjit Gill whole for any loss of earnings and other benefits suffered as a result of her unlawful suspension and discharge, by paying her the amount of $48,679.64, plus interest accrued to the date of payment, and minus tax withholdings required by Federal and State laws, as set forth in the remedy section of this De- cision. (c) Within 14 days from the date of this Order, re- move from its files any and all references to its unlawful discipline, suspension, and discharge of Kiranjit Gill, and within in 3 days thereafter, notify her in writing that this has been done and that the unlawful conduct will not be used against her 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”5 to all employ- 5 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- ees who have been employed by the Respondent at any time since March 2007. (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. June 17, 2010 Wilma B. Liebman, Chairman Peter C. Schaumber, Member Craig Becker, Member (SEAL) NATIONAL LABOR RELATIONS BOARD 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 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 bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT tell our employees that our supervisor is tired of employees complaining to the Union and does not like it, and WE WILL NOT threaten employees with not protecting them if a client complains about us in the fu- ture. WE WILL NOT threaten employees with discharge if they complain to the Union. WE WILL NOT threaten employees with discipline be- cause employees complained that our agent performed bargaining unit work. WE WILL NOT interrogate employees about why they called the Union. ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 WE WILL NOT threaten employees with unspecified re- prisals for calling the Union about a contract violation. WE WILL NOT discipline, suspend, or discharge em- ployees because they assist the Union and engage in con- certed activities, and to discourage employees from en- gaging 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 that we resume the same or similar business operations, within 14 days thereafter, offer Kiranjit Gill full reinstatement to her former posi- tion, or, if that position no longer exists, to a substan- tially equivalent position, without prejudice to her senior- ity or any other rights or privileges previously enjoyed. WE WILL make Kiranjit Gill whole for any loss of earnings and other benefits suffered as a result of her unlawful suspension and discharge, by paying her the amount of $48,679.64, plus interest, and minus tax with- holdings required by Federal and State laws. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any and all references to the unlawful discipline, suspension, and discharge of Kiranjit Gill, and within 3 days thereafter, notify her in writing that this has been done and that the unlawful conduct will not be used against her in any way. INTERNATIONAL PROTECTIVE SERVICES, INC. D/B/A INTERNATIONAL SERVICES, INC.