Consumer Product Services, LLC

357 NLRB No. 87 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. Consumer Product Services, LLC and Andres Re- strepo, Matthew Abedini, Gregory Brankiewicz, Robert Czerwien, Richard Hermasillo, Chris Kroplewski, Jerry Kroplewski, Ana Marin, Leonardo Martinez, Ludwika Mendrala, Bogu- mila Szczensny, Magaly Torres, Michael Zamora, William Zamora, Jamie Rosian, and Tadeusz Dabrowski. Case 13–CA–46622 September 7, 2011 DECISION AND ORDER BY CHAIRMAN PEARCE AND MEMBERS BECKER AND HAYES The Acting General Counsel seeks a default judgment in this case on the ground that the Respondent has failed to file an answer to the consolidated corrected complaint and compliance specification. Upon a charge and an amended charge filed by the Charging Parties on March 4 and May 9, 2011, respectively, the Acting General Counsel issued a corrected complaint, compliance speci- fication, answer requirement, notice of consolidated hearing, and an order consolidating complaint and com- pliance specification (the consolidated complaint and compliance specification), on June 1, 2011, against Con- sumer Product Services, LLC (the Respondent), alleging that it has violated Section 8(a)(1) of the Act. The Re- spondent failed to file an answer to the consolidated complaint and compliance specification. On July 11, 2011, the Acting General Counsel filed a Motion for Default Judgment with the Board. Thereaf- ter, on July 13, 2011, 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. 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 stated that unless an answer was received by June 22, 2011, the Board may find, pursuant to a motion for default judg- ment, that the allegations in the consolidated complaint and compliance specification are true. Further, the un- disputed allegations in the Acting General Counsel’s motion disclose that the Region, by email and by letter dated June 22, 2011, notified the Respondent that unless an answer was received by June 29, 2011, a motion for default judgment would be filed. Nevertheless, the Re- spondent failed to file an answer.1 In the absence of good cause being shown for the fail- ure to file an answer to the consolidated complaint and compliance specification, we deem the allegations in the consolidated complaint and compliance specification to be admitted as true, and we grant the Acting General Counsel’s Motion for Default Judgment.2 On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a corporation with an office and place of business in Alsip, Illinois, the Respondent’s facility, has been engaged in the business of refurbishing household appliances. During the 12-month period preceding issuance of the complaint, a representative period, the Respondent, in conducting its business operations described above, pur- chased and received at its facility goods valued in excess of $50,000 directly from points outside the State of Illi- nois. 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 . 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 1 The letter was returned to the Regional Office “unclaimed” and the email was returned “undeliverable.” However, it is well settled that a respondent’s failure or refusal to accept certified mail or to provide for receiving appropriate service cannot serve to defeat the purposes of the Act. See Cray Construction Group, LLC, 341 NLRB 944, 944 fn.5 (2004); I.C.E. Electric, Inc., 339 NLRB 247, 247 fn. 2 (2003). 2 The Acting General Counsel’s motion indicates that on April 29, 2011, the Respondent filed a voluntary petition for Chapter 11 bank- ruptcy in the United States Bankruptcy Court, Eastern District of New York, Case Number 8–11–72989–ast. On June 3, 2011, that case was converted from Chapter 11 to Chapter 7 by Court Order. It is well established that the institution of bankruptcy proceedings does not deprive the Board of jurisdiction 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 provi- sions 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 (2d Cir. 1992). Accord: Ahrens Air- craft, Inc. v. NLRB, 703 F.2d 23 (1st Cir. 1983). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 meaning of Section 2(11) of the Act and agents of the Respondent within the meaning of Section 2(13) of the Act: Robert Madden - VP Operations Paul Paliwoda - Manager Mariusz _______ - Supervisor/Manager Since approximately October 2010, the Charging Par- ties concertedly protested the Respondent’s failure to pay wages by holding work stoppages and contacting various news media outlets in December 2010 to protest the Re- spondent’s repeated failure to pay wages. In about November or December 2010, the Respon- dent, through Paliwoda and Mariusz, at the Employer’s facility, threatened employees with discharge in response to their protected concerted activities. In about November or December 2010, the Respon- dent, through Mariusz, at the Employer’s facility, threat- ened employees with physical removal by security per- sonnel in response to their protected concerted activities. In about December 2010, the Respondent, through Madden, via telephone, threatened employees with dis- charge in response to their protected concerted activities. In about January 2011, the Respondent, through its se- curity guard service, threatened employees with police arrest in response to their protected concerted activities. In January 2011, the Respondent failed to recall the Charging Parties from layoff in response to their pro- tected concerted activities. CONCLUSION OF LAW By the conduct described above, the Respondent has been interfering with, restraining, and coercing employ- ees in the exercise of the rights guaranteed in Section 7 of the Act in violation of 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 failing to recall the Charging Parties from layoff in response to their protected concerted activities, we shall order the Respondent to offer Charging Parties Andres Restrepo, Matthew Abedini, Gregory Brankiewicz, Robert Czerwien, Richard Hermasillo, Chris Kroplewski, Jerry Kroplewski, Ana Marin, Leonardo Martinez, Ludwika Mendrala, Bogumila Szczensny, Magaly Tor- res, Michael Zamora, William Zamora, Jamie Rosian, and Tadeusz Dabrowski full reinstatement to their former positions, or, if those positions no longer exist, to sub- stantially similar positions, without prejudice to their seniority and other rights and privileges previously en- joyed. In addition, we shall order the Respondent to make the Charging Parties whole for any loss of earnings and other benefits suffered as a result of the discrimina- tion against them, as set forth in the compliance specifi- cation, with interest accrued to the date of payment, as prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987), compounded daily as prescribed in Ken- tucky River Medical Center, 356 NLRB No. 8 (2010), and minus tax withholdings required by Federal and State laws.3 The Respondent shall also be required to remove from its files all references to the unlawful fail- ure to recall from layoff Andres Restrepo, Matthew Abedini, Gregory Brankiewicz, Robert Czerwien, Rich- ard Hermasillo, Chris Kroplewski, Jerry Kroplewski, Ana Marin, Leonardo Martinez, Ludwika Mendrala, Bogumila Szczensny, Magaly Torres, Michael Zamora, William Zamora, Jamie Rosian, and Tadeusz Dabrowski and to notify them in writing that this has been done and that the unlawful failure to recall them from layoff will not be used against them in any way. ORDER The National Labor Relations Board orders that the Respondent, Consumer Product Services, LLC, Alsip, Illinois, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Threatening employees with discharge in response to their protected concerted activities. (b) Threatening employees with physical removal by security personnel in response to their protected con- certed activities. (c) Threatening employees with police arrest in re- sponse to their protected concerted activities. 3 The compliance specification states that the backpay period for the wages owed to and on behalf of the discriminatees commences on the date of the Respondent’s failure to recall them, January 3, 2011, and ends on March 11, 2011, the last day production employees of the Respondent worked. The total amount due to each discriminatee in- cludes interest calculated through May 27, 2011. In the consolidated complaint and compliance specification, the Act- ing General Counsel seeks an order requiring reimbursement of amounts equal to the difference in taxes owed upon receipt of a lump- sum payment and taxes that would have been owed had there been no discrimination. Further, the Acting General Counsel requests that the Respondent be required to submit the appropriate documentation to the Social Security Administration so that when backpay is paid, it will be allocated to the appropriate periods. Because the relief sought would involve a change in Board law, we believe that the appropriateness of this proposed remedy should be resolved after a full briefing by the affected parties, and there has been no such briefing in this case. Ac- cordingly, we decline to order this relief at this time. See, e.g., Ishikawa Gasket America, Inc., 337 NLRB 175, 176 (2001), enfd. 354 F.3d 534 (6th Cir. 2004), and cases cited therein. CONSUMER PRODUCT SERVICES 3 (d) Failing to recall employees from layoff in response to their protected concerted activities. (e) 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 Andres Restrepo, Matthew Abedini, Gregory Brankiewicz, Robert Czerwien, Richard Hermasillo, Chris Kroplewski, Jerry Kroplewski, Ana Marin, Leo- nardo Martinez, Ludwika Mendrala, Bogumila Szczen- sny, Magaly Torres, Michael Zamora, William Zamora, Jamie Rosian, and Tadeusz Dabrowski full reinstatement to their former positions, or, if those positions no longer exist, to substantially equivalent positions, without pre- judice to their seniority or any other rights or privileges previously enjoyed. (b) make Andres Restrepo, Matthew Abedini, Gregory Brankiewicz, Robert Czerwien, Richard Hermasillo, Chris Kroplewski, Jerry Kroplewski, Ana Marin, Leo- nardo Martinez, Ludwika Mendrala, Bogumila Szczen- sny, Magaly Torres, Michael Zamora, William Zamora, Jamie Rosian, and Tadeusz Dabrowski whole for any loss of earnings and other benefits suffered as a result of the unlawful failure to recall them from layoff, by paying them the amount set forth below, plus interest accrued to the date of payment, and minus tax withholdings re- quired by Federal and State laws, as set forth in the rem- edy section of this decision: DISCRIMINATEE BACKPAY DUE Andres Restrepo $ 6,064 Matthew Abedini $ 3,653 Gregory Brankiewicz $ 5,166 Robert Czerwien $ 4,479 Richard Hermasillo $ 5,209 Chris Kroplewski $ 5,812 Jerry Kroplewski $ 5,659 Ana Marin $ 3,704 Leonardo Martinez $ 3,871 Ludwika Mendrala $ 3,693 Bogumila Szczensny $ 3,689 Magaly Torres $ 3,537 Michael Zamora $ 5,659 William Zamora $ 4,042 Jamie Rosian $ 3,739 Tadeusz Dabrowski $ 5,255 TOTAL BACKPAY: $73,231 (c) Within 14 days from the date of this Order, remove from its files any references to the unlawful failure to recall from layoff Andres Restrepo, Matthew Abedini, Gregory Brankiewicz, Robert Czerwien, Richard Herma- sillo, Chris Kroplewski, Jerry Kroplewski, Ana Marin, Leonardo Martinez, Ludwika Mendrala, Bogumila Szczensny, Magaly Torres, Michael Zamora, William Zamora, Jamie Rosian, and Tadeusz Dabrowski, and 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. (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, post at its facility in Alsip, Illinois, copies of the attached notice marked “Appendix.”4 Copies of the notice, on forms provided by the Regional Director for Region 13, after being signed by the Respondent’s authorized representa- tive, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent customarily communicates with its employees by such means.5 Rea- sonable 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 pend- ency of these proceedings, the Respondent has gone out of business or closed the facility involved in these pro- 4 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.” 5 For the reasons stated in his dissenting opinion in J. Picini Floor- ing, 356 NLRB No. 9 (2010), Member Hayes would not require elec- tronic distribution of the notice. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 ceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employ- ees and former employees employed by the Respondent at any time since November 2010. (f) Within 21 days after service by the Region, file with the Regional Director for Region 13 a sworn certifi- cation of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. Dated, Washington, D.C. September 7, 2011 Mark Gaston Pearce, Chairman Craig Becker, Member Brian E. Hayes, Member (SEAL) NATIONAL LABOR RELATIONS BOARD 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 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 threaten employees with discharge in re- sponse to their protected concerted activities. WE WILL NOT threaten employees with physical re- moval by security personnel in response to their pro- tected concerted activities. WE WILL NOT threaten employees with police arrest in response to their protected concerted activities. WE WILL NOT fail to recall employees from layoff in response to their protected concerted activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. WE WILL, within 14 days from the date of the Board’s Order, offer Andres Restrepo, Matthew Abedini, Greg- ory Brankiewicz, Robert Czerwien, Richard Hermasillo, Chris Kroplewski, Jerry Kroplewski, Ana Marin, Leo- nardo Martinez, Ludwika Mendrala, Bogumila Szczen- sny, Magaly Torres, Michael Zamora, William Zamora, Jamie Rosian, and Tadeusz Dabrowski full reinstatement to their former positions, or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privi- leges previously enjoyed. WE WILL make Andres Restrepo, Matthew Abedini, Gregory Brankiewicz, Robert Czerwien, Richard Herma- sillo, Chris Kroplewski, Jerry Kroplewski, Ana Marin, Leonardo Martinez, Ludwika Mendrala, Bogumila Szczensny, Magaly Torres, Michael Zamora, William Zamora, Jamie Rosian, and Tadeusz Dabrowski whole for any loss of earnings and other benefits suffered as a result of our unlawful failure to recall them from layoff, by paying them the amount set forth in the Board’s Or- der, with interest. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any references to the unlawful failure to recall from layoff Andres Restrepo, Matthew Abedini, Gregory Brankiewicz, Robert Czer- wien, Richard Hermasillo, Chris Kroplewski, Jerry Kroplewski, Ana Marin, Leonardo Martinez, Ludwika Mendrala, Bogumila Szczensny, Magaly Torres, Michael Zamora, William Zamora, Jamie Rosian, and Tadeusz Dabrowski, 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. CONSUMER PRODUCT SERVICES, LLC