Avalanche Location

National Labor Relations Board - Board Decisions

Feb 8, 2000

330 N.L.R.B. 90 (N.L.R.B. 2000)

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330 NLRB No. 90
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.

Stuart Siebert d/b/a Avalanche Location Tenting and
Walter Barrera. Case 21–CA–33338 (Formerly
Case 31–CA–23866)
February 8, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS HURTGEN
AND BRAME
Upon a charge filed by Walter Barrera on April 27,
1999, the General Counsel of the National Labor Rela-
tions Board issued a complaint on October 21, 1999,
against Stuart Siebert d/b/a Avalanche Location Tenting,
the Respondent, alleging that it has violated Section
8(a)(1) of the National Labor Relations Act. Although
properly served copies of the charge and complaint, the
Respondent failed to file an answer.1
On December 23, 1999, the General Counsel filed a
Motion for Summary Judgment with the Board. On De-
cember 30, 1999, 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.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Summary Judgment
Sections 102.20 and 102.21 of the Board’s Rules and
Regulations provide 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 notes
that unless an answer is filed within 14 days of service,
all the allegations in the complaint will be considered
admitted. Further, the undisputed allegations in the Mo-
tion for Summary Judgment disclose that the Region, by
letter dated December 2, 1999, notified the Respondent
that unless an answer were received by December 9,
1999, a Motion for Default Summary 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 Summary Judgment.
On the entire record, the Board makes the following

1 The complaint was served on the Respondent by certified mail.
The Post Office returned the complaint to the Region as “unclaimed.”
The Respondent’s failure or refusal to accept certified mail cannot
defeat the purposes of the Act. See, e.g., Michigan Expediting Service,
282 NLRB 210 fn. 6 (1986).
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent has been owned
by Stuart Siebert, a sole proprietorship, doing business as
Avalanche Location Tenting, with a main office located
at 5550 Tuxedo Terrace, Los Angeles, California, and
has been engaged in the business of setting up tents for
motion picture companies and performed services for
Universal Studios at a Cal State Fullerton location in
Fullerton, California (Fullerton jobsite). During the 12-
month period ending April 30, 1999, a representative
period, the Respondent, in conducting its business opera-
tions described above, provided services valued in excess
of $50,000 for Universal Studios, Paramount Pictures,
and other enterprises within the State of California, each
of which other enterprises, during the same period of
time, purchased and received at its California facilities
goods valued in excess of $50,000 directly from points
outside the State of California. We find that the Respon-
dent 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, Stuart Siebert held the position
of president and Wilfredo Valenzuela held the position of
dispatcher, and both have been supervisors of the Re-
spondent within the meaning of Section 2(11) of the Act
and agents of the Respondent within the meaning of Sec-
tion 2(13) of the Act.
On about April 26, 1999, at the Fullerton jobsite,
Amilcar Barrera, Walter Barrera, Walter Estrada, Julio
Flores, Marlon Giron, Pedro Garcia Hernandez, Jorge
Hernandez Laureano, Miguel A. Melgar, Hugo Rene
Santos, and Antonio Soto concertedly complained to the
Respondent regarding the wages, hours, and working
conditions of the Respondent’s employees by complain-
ing about not having been paid for services performed.
On about April 26, 1999, the Respondent, by Stuart
Siebert, at the Fullerton jobsite, threatened to discharge
employees because they had concertedly complained
about not having been paid for services performed.
On about April 26, 1999, the Respondent discharged
its employees Amilcar Barrera, Walter Barrera, Walter
Estrada, Julio Flores, Marlon Giron, Pedro Garcia Her-
nandez, Jorge Hernandez Laureano, Miguel A. Melgar,
Hugo Rene Santos, and Antonio Soto.
The Respondent threatened to discharge employees
and discharged the above-named employees because they
concertedly complained to the Respondent about not
having been paid for services performed, and to discour-
age employees from engaging in these or other concerted
activities.
CONCLUSION OF LAW
By the acts and conduct described above, the Respon-
dent has interfered with, restrained, and coerced employ-
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ees in the exercise of the rights guaranteed in Section 7
of the Act, and has thereby engaged in unfair labor prac-
tices affecting 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 employees Amilcar Barrera, Wal-
ter Barrera, Walter Estrada, Julio Flores, Marlon Giron,
Pedro Garcia Hernandez, Jorge Hernandez Laureano,
Miguel A. Melgar, Hugo Rene Santos, and Antonio Soto,
we shall order the Respondent to offer them full rein-
statement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privi-
leges previously enjoyed, and to make them whole for
any loss of earnings and other benefits suffered as a re-
sult of their unlawful discharges, with interest. 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 shall also be required to remove from its
files any and all references to the unlawful discharges,
and to notify the 10 employees in writing that this has
been done.
ORDER
The National Labor Relations Board orders that the
Respondent, Stuart Siebert d/b/a Avalanche Location
Tenting, Los Angeles, California, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against
employees because they concertedly complain to the
Respondent about the wages, hours, and working condi-
tions of the Respondent’s employees by complaining
about not having been paid for services performed or
because they otherwise engage in protected concerted
activities.
(b) Threatening to discharge employees if they engage
in protected concerted activities.
(c) 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
Amilcar Barrera, Walter Barrera, Walter Estrada, Julio
Flores, Marlon Giron, Pedro Garcia Hernandez, Jorge
Hernandez Laureano, Miguel A. Melgar, Hugo Rene
Santos, and Antonio Soto full reinstatement to their for-
mer jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority
or any other rights or privileges previously enjoyed.
(b) Make Amilcar Barrera, Walter Barrera, Walter
Estrada, Julio Flores, Marlon Giron, Pedro Garcia Her-
nandez, Jorge Hernandez Laureano, Miguel A. Melgar,
Hugo Rene Santos, and Antonio Soto whole for any loss
of earnings and other benefits suffered as a result of their
unlawful discharges, 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 any and all references to the unlawful dis-
charges of Amilcar Barrera, Walter Barrera, Walter
Estrada, Julio Flores, Marlon Giron, Pedro Garcia Her-
nandez, Jorge Hernandez Laureano, Miguel A. Melgar,
Hugo Rene Santos, and Antonio Soto, and within 3 days
thereafter notify them in writing that this has been done
and that the discharges will not be used against them in
any way.
(d) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all
other records necessary to analyze the amount of back-
pay due under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its facility in Los Angeles, California, copies of the at-
tached notice marked “Appendix.”2 Copies of the notice,
on forms provided by the Regional Director for Region
21, after being signed by the Respondent’s authorized
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. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al-
tered, 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 facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since April 26,
1999.
(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.

2 If this Order is enforced by a Judgment of the United States Court
of Appeals, the words in the notice reading “Posted by Order of the
National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board.”
3 AVALANCHE LOCATION TENTING
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Dated, Washington, D.C. February 8, 2000

John C. Truesdale, Chairman

Peter J. Hurtgen, Member

J. Robert Brame III, 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 the National Labor Relations Act and has ordered us to
post and abide by this notice.

WE WILL NOT discharge or otherwise discriminate
against employees because they concertedly complain to
us about the wages, hours, and working conditions of our
employees by complaining about not having been paid
for services performed or because they otherwise engage
in protected concerted activities.
WE WILL NOT threaten to discharge employees if they
engage in protected concerted 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 this Order,
offer Amilcar Barrera, Walter Barrera, Walter Estrada,
Julio Flores, Marlon Giron, Pedro Garcia Hernandez,
Jorge Hernandez Laureano, Miguel A. Melgar, Hugo
Rene Santos, and Antonio Soto full reinstatement to their
former jobs or, if those jobs no longer exist, to substan-
tially equivalent positions, without prejudice to their sen-
iority or any other rights or privileges previously en-
joyed.
WE WILL make Amilcar Barrera, Walter Barrera, Wal-
ter Estrada, Julio Flores, Marlon Giron, Pedro Garcia
Hernandez, Jorge Hernandez Laureano, Miguel A. Mel-
gar, Hugo Rene Santos, and Antonio Soto whole for any
loss of earnings and other benefits suffered as a result of
their unlawful discharges, with interest.
WE WILL , within 14 days from the date of this Order,
remove from our files any and all references to the
unlawful discharges of Amilcar Barrera, Walter Barrera,
Walter Estrada, Julio Flores, Marlon Giron, Pedro Garcia
Hernandez, Jorge Hernandez Laureano, Miguel A. Mel-
gar, Hugo Rene Santos, and Antonio Soto, and within 3
days thereafter notify them in writing that this has been
done and that the discharges will not be used against
them in any way.

STUART SIEBERT d/b/a AVALANCHE LOCATION TENTING