Advanced Fire Technology PDF]

National Labor Relations Board - Board Decisions

Apr 30, 2004

341 N.L.R.B. 112 (N.L.R.B. 2004)

1
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.
Advanced Fire Technology, LLC and Road Sprinkler
Fitters UA Local No. 669, a/w United Associa-
tion of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry of the
United States and Canada, AFL–CIO. Case 7–
CA–46847
April 30, 2004
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS WALSH
AND MEISBURG
The General Counsel seeks a default judgment in this
case on the ground that the Respondent has withdrawn its
answer to the complaint. Upon charges filed by the Un-
ion on November 14 and 21, 2003, and January 5 and
February 24, 2004, the General Counsel issued the com-
plaint on February 27, 2004, against Advanced Fire
Technology, LLC, the Respondent, alleging that it has
violated Section 8(a)(1) and (3) of the Act.1 The Re-
spondent filed an answer to the complaint. On March 18,
2004, however, the Respondent withdrew its answer.
On March 29, 2004, the General Counsel filed a Mo-
tion for Default Judgment with the Board. On April 1,
2004, 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 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 stated
that unless an answer was filed by March 12, 2004, all
the allegations in the complaint would be considered
admitted. Although the Respondent filed an answer to
the complaint, it subsequently withdrew its answer. The
withdrawal of an answer has the same effect as a failure

1 The document issued by the General Counsel on February 27,
2004, was entitled, “Complaint, Report on Challenged Ballots and
Objections, Order Consolidating Unfair Labor Practice and Representa-
tion Cases, and Notice of Consolidated Hearing.” An Order Severing
Cases and Postponing Objections Hearing was issued on March 19,
2004.
to file an answer, i.e., the allegations in the complaint
must be considered to be true.2
Accordingly, we grant the General Counsel's Motion
for Default Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times since October 2003, the Respon-
dent, a corporation with an office and place of business
located at 2582 Ramblewood Drive, Kalamazoo, Michi-
gan, has been a construction contractor engaged in the
installation, maintenance, and repair of fire protection
systems. Prior to October 2003, the Respondent’s facil-
ity was located at 508 Harrison, Kalamazoo, Michigan.
During calendar year 2003, the Respondent purchased
and received at its facility and at construction sites in the
State of Michigan materials and supplies valued in ex-
cess of $50,000 directly from suppliers located outside
the State of Michigan.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act and that Road Sprinkler Fitters UA Local
No. 669, a/w United Association of Journeymen and Ap-
prentices of the Plumbing and Pipe Fitting Industry of
the United States and Canada, AFL–CIO, is a labor or-
ganization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times, John Phillips has been the Re-
spondent’s president and 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.
The Respondent, through its agent John Phillips, on or
about the dates and at the locations set forth below, en-
gaged in the following conduct:

2 See Maislin Transport, 274 NLRB 529 (1985).
341 NLRB No. 112
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2

Date Location Conduct
October 22, 2003 Resondent’s facil-
ity
Promised employees a greater voice in managing the business in order to
discourage support for the union
Between October
22 and November
7, 2003
Respondent’s
facility
Promised employees that he would improve wages and benefits in order to
discourage support for the Union.
December 9,
2003
Phillips’ vehicle Promised employees improved wages and benefits in order to discourage
support for the Union, and implied that employees who supported the Un-
ion would be laid off or discharged.

The Respondent, on about November 7, 2003, at the
Respondent’s facility, told employees that they were ex-
pected to vote against the Union.
On about November 17, 2003, the Respondent,
through its agent John Phillips, at the Emmanuel Fellow-
ship Church jobsite in Oshtemo Township, issued final
disciplinary warnings to its employees Lavern Fisk and
Jose Garcia.
On about November 24 and November 28, 2003, the
Respondent, through its agent John Phillips, reduced gas
money payments to its employee Lavern Fisk.
On about November 21, 2003, the Respondent laid off
its employee Jose Garcia.
The Respondent engaged in the conduct described
above because its employees assisted the Union and en-
gaged in concerted activities, and to discourage employ-
ees from engaging in these and other protected concerted
activities.
CONCLUSIONS OF LAW
By the conduct described above, the Respondent has
interfered with, restrained, and coerced employees in the
exercise of the rights guaranteed them by Section 7 of the
Act, in violation of Section 8(a)(1) of the Act. In addi-
tion, by issuing final disciplinary warnings to employees
Jose Garcia and Lavern Fisk, reducing gas money pay-
ments to Lavern Fisk, and laying off Jose Garcia, the
Respondent has discriminated in regard to the hire or
tenure or terms and conditions of employment of its em-
ployees, thereby discouraging membership in a labor
organization, in violation of Section 8(a)(3) 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)(3)
and (1) by laying off employee Jose Garcia, we shall
order the Respondent to offer him full reinstatement to
his former job, or if that job no longer exists, to a sub-
stantially equivalent position, without prejudice to his
seniority or any other rights or privileges previously en-
joyed, and to make him whole for any loss of earnings
and other benefits suffered as a result of the discrimina-
tion against him. Backpay shall be computed in accor-
dance with F. W. Woolworth Co., 90 NLRB 289 (1950),
with interest as prescribed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).
We also shall order the Respondent to rescind the
unlawful final disciplinary warnings issued to Lavern
Fisk and Jose Garcia.
In addition, the Respondent shall be required to re-
move from its files any and all references to the unlawful
layoff of Jose Garcia, and to the unlawful final discipli-
nary warnings issued to Jose Garcia and Lavern Fisk, and
to notify them in writing that this has been done and that
the unlawful conduct will not be used against them in
any way.
Finally, we shall order the Respondent to rescind its
reduction in gas money payments to employee Lavern
Fisk, and make Fisk whole for any financial loss he may
have suffered as a result of the Respondent’s unlawful
action, with interest as prescribed in New Horizons for
the Retarded, supra.
ORDER
The National Labor Relations Board orders that the
Respondent, Advanced Fire Technology, LLC, Kalama-
zoo, Michigan, its officers, agents, successors, and as-
signs, shall
1 Cease and desist from
(a) Promising employees a greater voice in managing
the business and promising them an improvement in
wages and benefits in order to discourage support for
Road Sprinkler Fitters UA Local No. 669, a/w United
Association of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry of the United States
and Canada, AFL–CIO.
ADVANCED FIRE TECHNOLOGY, LLC 3
(b) Implying that employees who supported the Union
would be laid off or discharged.
(c) Telling employees that they were expected to vote
against the Union.
(d) Issuing final disciplinary warnings to employees in
order to discourage support for the Union.
(e) Reducing gas money payments to employees in
order to discourage support for the Union.
(f) Laying off employees in order to discourage sup-
port for the Union.
(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) Within 14 days from the date of this Order, offer
Jose Garcia full reinstatement to his former job, or, if that
job no longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority or any other rights
and privileges previously enjoyed.
(b) Make whole Jose Garcia for any loss of earnings
and other benefits suffered as a result of the discrimina-
tion against him, with interest, in the manner set forth in
the remedy section of this Decision.
(c) Rescind the final disciplinary warnings issued to
Jose Garcia and Lavern Fisk.
(d) Within 14 days from the date of this Order, re-
move from its files any and all references to the unlawful
layoff of Jose Garcia and to the unlawful final discipli-
nary warnings issued to Jose Garcia and Lavern Fisk, 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.
(e) Rescind the reduction in gas money payments to
Lavern Fisk, and make him whole for any financial loss
he may have suffered from the Respondent’s unlawful
conduct, with interest, in the manner set forth in the rem-
edy section of this Decision.
(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
electronic 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 Kalamazoo, Michigan, copies of the at-
tached notice marked “Appendix.”3 Copies of the notice,
on forms provided by the Regional Director for Region
7, after being signed by the Respondent's authorized rep-
resentative, 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 October 22, 2003.
(h) 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. April 30, 2004

Robert J. Battista, Chairman

Dennis P. Walsh, Member

Ronald Meisburg, 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

3 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.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4
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 ac-
tivities.

WE WILL NOT promise our employees a greater voice in
managing the business and promise them an improve-
ment in wages and benefits in order to discourage sup-
port for Road Sprinkler Fitters UA Local No. 669, a/w
United Association of Journeymen and Apprentices of
the Plumbing and Pipe Fitting Industry of the United
States and Canada, AFL–CIO.
WE WILL NOT imply that employees who supported the
Union would be laid off or discharged.
WE WILL NOT tell our employees that they are expected
to vote against the Union.
WE WILL NOT issue final disciplinary warnings to em-
ployees in order to discourage support for the Union.
WE WILL NOT reduce gas money payments to employ-
ees in order to discourage support for the Union.
WE WILL NOT lay off employees in order to discourage
support for the Union.
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 Jose 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 or privileges previously enjoyed.
WE WILL make Jose Garcia whole for any loss of earn-
ings and other benefits suffered as a result of the dis-
crimination against him, with interest.
WE WILL rescind the final disciplinary warnings issued
to Jose Garcia and Lavern Fisk.
WE WILL, within 14 days from the date of the Board’s
order, remove from our files any and all references to the
unlawful layoff of Jose Garcia and to the unlawful final
disciplinary warnings issued to Jose Garcia and Lavern
Fisk, and WE WILL, within 3 days thereafter, notify them
in writing that this has been done, and that our unlawful
conduct will not be used against them in any way.
WE WILL reinstate the full gas money payments to
Lavern Fisk, and make him whole for any financial loss
he may have suffered from our unlawful conduct, with
interest.

ADVANCED FIRE TECHNOLOGY, LLC