SPCA in Cattaraugus County, Inc.

359 NLRB No. 68 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. SPCA in Cattaraugus County, Inc. and Linda Vane. Case 03–CA–090311 February 22, 2013 DECISION AND ORDER BY CHAIRMAN PEARCE AND MEMBERS GRIFFIN AND BLOCK 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 complaint. Upon a charge filed by Linda Vane on October 1, 2012, the Acting General Counsel issued a complaint and notice of hearing on No- vember 30, 2012, against SPCA in Cattaraugus County, Inc. (the Respondent), alleging that it has violated Sec- tion 8(a)(1) of the National Labor Relations Act. The Respondent failed to file an answer. On December 31, 2012, the Acting General Counsel filed a Motion for Default Judgment with the Board. Thereafter, on January 2, 2013, the Board issued an order transferring the proceeding 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. 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 received by December 14, 2012, the Board may find, pursuant to a motion for de- fault judgment, that the allegations in the complaint are true. Further, the undisputed allegations in the Acting General Counsel’s motion disclose that the Region, by letter and email dated December 18, 2012, notified the Respondent that unless an answer were received by the extended due date of December 26, 2012, a motion for default judgment would be filed. In addition, on Decem- ber 18, 2012, the Acting General Counsel emailed the Respondent an additional copy of the complaint. Never- theless, the Respondent failed to file an answer. In the absence of good cause being shown for the fail- ure to file an answer, we grant the Acting 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, a not-for-profit corporation with an office and place of business at 2944 Route 16, Olean, New York (the Respondent’s facility), has operated an animal shelter and provided animal con- trol to municipalities. In conducting its operations dur- ing the calendar year ending December 31, 2011, the Respondent derived gross revenues in excess of $250,000 and provided services valued in excess of $5000 for the City of Olean, New York, and the Town of Olean, New York, enterprises directly engaged in inter- state 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 At all material times, Kelly Chaffee has been a mem- ber of the Respondent’s board of directors, and has been a supervisor of the Respondent within the meaning of Section 2(11) of the Act, and an agent of the Respondent within the meaning of Section 2(13) of the Act. At all material times, the following individuals held the positions set forth opposite their respective names, and have been agents of the Respondent within the meaning of Section 2(13) of the Act: Kristen McDonald Chair, Board of Directors Regina DeFeo Vice Chair, Board of Directors Tina Wedge Member, Board of Directors (From May to about August 2012) Since about April 7, 2012, the Respondent has main- tained a confidentiality policy that provides in part that: It is crucial to the Organization that Employees and Board Members do not publicly criticize, condemn or degrade other SPCA Board Members, other SPCA Employees, or SPCA policies. About June 9, 2012, the Respondent’s employee, Linda Vane, concertedly complained to the Respondent regarding the wages, hours, and working conditions of the Respondent’s employees by demanding that employ- ees receive their paychecks. About June 9, 10, and 15, 2012, by electronic mail, Vane concertedly complained to the Respondent regard- ing the wages, hours, and working conditions of the Re- spondent’s employees by demanding that employees receive their paychecks. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 About June 15, 2012, the Respondent removed Vane from the position of medical attendant. About June 17, 2012, the Respondent, by letter, threat- ened Vane with discharge if she engaged in protected concerted activities. About June 25, 2012, the Respondent discharged Vane. The Respondent engaged in the conduct described above because Vane engaged in the conduct described, and to discourage employees from engaging in these or other 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 them by Sec- tion 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) of the Act by maintaining an overly broad confidentiality policy prohibiting employees from publicly criticizing, condemning, or degrading SPCA Board Members, em- ployees, or company policies, we shall order the Respon- dent to rescind the rule and notify its employees in writ- ing that the rule is no longer in force. Further, having found that the Respondent violated Section 8(a)(1) of the Act by removing Linda Vane from the position of medi- cal attendant and discharging her because she engaged in protected concerted activities and to discourage employ- ees from engaging in these or other concerted activities, we shall order the Respondent to offer Vane full rein- statement to her former job as a medical attendant or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or any other rights or privileges previously enjoyed and to make Vane whole for any loss of earnings and other benefits suffered as a result of the Respondent’s unlawful actions against her. 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), compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB No. 8 (2010). Additionally, in accordance with our recent decision in Latino Express, Inc., 359 NLRB No. 44 (2012), we shall order the Respondent to compensate Vane for the ad- verse tax consequences, if any, of receiving a lump-sum backpay award and to file a report with the Social Secu- rity Administration allocating the backpay award to the appropriate calendar quarters for Vane. Finally, the Respondent shall also be required to re- move from its files any reference to the unlawful removal of Vane from the position of medical attendant and her unlawful discharge and to notify Vane in writing that this has been done and that the unlawful removal and dis- charge will not be used against her in any way. ORDER The National Labor Relations Board orders that the Respondent, SPCA in Cattaraugus County, Inc., Olean, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Maintaining an overly broad confidentiality policy that prohibits employees from publicly criticizing, con- demning, or degrading SPCA Board Members, employ- ees, or policies. (b) Removing employees from their positions because they engage in protected concerted activities, and to dis- courage employees from engaging in these or other con- certed activities. (c) Threatening employees with discharge because they engage in protected concerted activities, and to dis- courage employees from engaging in these or other con- certed activities. (d) Discharging or otherwise discriminating against employees because they engage in protected concerted activities, and to discourage employees from engaging in these or other 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) Rescind the confidentiality policy prohibiting em- ployees from publicly criticizing, condemning or degrad- ing SPCA Board Members, employees or policies, and notify employees in writing that this has been done and the rule is no longer in force. (b) Within 14 days from the date of this Order, offer Linda Vane full reinstatement to her former job as a medical attendant or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or any other rights or privileges previously en- joyed. (c) Make Linda Vane whole for any loss of earnings and other benefits suffered as a result of the discrimina- SPCA IN CATTARAUGUS COUNTY 3 tion against her, in the manner set forth in the remedy section of this decision. (d) Compensate Linda Vane for the adverse tax conse- quences, if any, of receiving a lump-sum backpay award, and file a report with the Social Security Administration allocating the backpay award to the appropriate calendar quarters. (e) Within 14 days from the date of this Order, remove from its files any reference to the unlawful removal of Linda Vane from the position of medical attendant and her unlawful discharge and, within 3 days thereafter, notify her in writing that this has been done and that the unlawful discrimination will not be used against her 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 Olean, New York, copies of the attached notice marked “Appendix.”1 Copies of the notice, on forms provided by the Acting Regional Director for Re- gion 3, after being signed by the Respondent’s author- ized representative, 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. Reasonable steps shall be taken by the Respon- dent 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 Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all cur- rent employees and former employees employed by the Respondent at any time since June 15, 2012. (h) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- 1 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, attesting to the steps that the Respondent has taken to comply. Dated, Washington, D.C. February 22, 2013 ______________________________________ Mark Gaston Pearce, Chairman ______________________________________ Richard F. Griffin, Jr., Member ______________________________________ Sharon Block, 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 maintain an overbroad confidentiality policy that prohibits you from publicly criticizing, con- demning, or degrading SPCA Board Members, employ- ees, or policies. WE WILL NOT remove you from your position because you engage in protected concerted activities, or to dis- courage employees from engaging in these or other con- certed activities. WE WILL NOT threaten you with discharge because you engage in protected concerted activities, or to discourage employees from engaging in these or other concerted activities. WE WILL NOT discharge or otherwise discriminate against you because you engage in protected concerted DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 activities, or to discourage 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 listed above. WE WILL rescind our overbroad confidentiality policy that prohibits you from publicly criticizing, condemning, or degrading SPCA Board Members, employees, or poli- cies. WE WILL, within 14 days from the date of the Board’s Order, offer Linda Vane full reinstatement to her former job as a medical attendant or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or any other rights or privileges previ- ously enjoyed. WE WILL make Linda Vane whole for any loss of earn- ings and other benefits suffered as a result of the dis- crimination against her, with interest. WE WILL compensate Linda Vane for the adverse tax consequences, if any, of receiving a lump-sum backpay award, and file a report with the Social Security Admini- stration allocating the backpay award to the appropriate calendar quarters for her. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlaw- ful removal of Linda Vane from the position of medical attendant and her unlawful discharge, and WE WILL, within 3 days thereafter, notify Linda Vane in writing that this has been done and that the unlawful discrimina- tion will not be used against her in any way. SPCA in Cattaraugus County, Inc.