BaySys Technologies LLC

National Labor Relations Board - Board Decisions

Aug 1, 2011

357 NLRB No. 28 (N.L.R.B. 2011)

357 NLRB No. 28
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.
Bay Sys Technologies, LLC and Dontray L. Tull. Case
5–CA–36314
August 2, 2011
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS BECKER
AND PEARCE
The Acting General Counsel seeks a default judgment
in this case on the ground that the Respondent has with-
drawn its answer to the complaint. Upon a charge filed
by Dontray L. Tull, the Acting General Counsel issued a
complaint on February 28, 2011, against BaySys Tech-
nologies, LLC, the Respondent, alleging that it has vio-
lated Section 8(a)(1) of the Act. The Respondent filed an
answer to the complaint. However, on May 27, 2011, the
Respondent withdrew its answer.
On May 27, 2011, the Acting General Counsel filed a
Motion for Default Judgment with the Board. On May
31, 2011, the Board issued an order transferring the pro-
ceeding 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 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 March 14, 2011,
the Board may find, pursuant to a motion for default
judgment, that the allegations in the complaint are true.
Although the Respondent filed an answer on March 18,
2011, it subsequently withdrew its answer by letter dated
on May 27, 2011. Such a withdrawal of an answer has
the same effect as a failure to file an answer, i.e., the al-
legations in the complaint must be considered to be true.
1

Accordingly, we grant the Acting General Counsel's Mo-
tion for Default Judgment.
On the entire record, the Board makes the following

1 See Maislin Transport, 274 NLRB 529 (1985).
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a Virginia lim-
ited liability company, with its principal office and place
of business in Accomac, Virginia, has been engaged in
designing and installing custom aircraft interiors for
commercial customers.
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 Accomac, Virginia facility
goods valued in excess of $50,000 directly from points
located outside the Commonwealth of Virginia.
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, the following individuals have
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:
Heather Anson - Human Resources Director
Paresh Buch - Vice-President, Engineering
Randy Knoblock - Vice-President, Operations
David Lumgair - Manager, BaySys Flight
Operations
Steven Walton - Chief Executive Officer
On about August 6, 2010, Dontray Tull engaged in
concerted activities with other employees for the pur-
poses of mutual aid and protection, by posting comments
to employees’ Facebook status on the website
www.Facebook.com, so they could concertedly complain
about the Respondent not having issued their paychecks
on time.
On about August 13, 2010, the newspaper, Eastern
Shore Post, published the Facebook conversation de-
scribed above.
On about August 13, 2010, the Respondent, by Steve
Walton, in an email message to employees:
(a) expressed disappointment that employees took
their protected concerted complaints to a newspaper
rather than himself or other internal avenues;
(b) told employees their protected concerted com-
plaints breached their nondisclosure agreements;
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
(c) threatened employees with legal action for having
engaged in protected concerted activities;
(d) implied that employees would be discharged unless
they issued written explanations about their protected
concerted activities to other employees and to the East-
ern Shore Post newspaper, and explained, in writing,
their intentions for their future with the Respondent; and
(e) threatened employees that their supervisors would
be conducting performance evaluations in which, it was
implied, their protected concerted activities would be a
consideration.
On about August 17, 2010, the Respondent, by Steve
Walton and Paresh Buch, in Walton’s office, at the Re-
spondent’s Wallops Island facility:
(a) interrogated employees about their protected con-
certed activities;
(b) told employees they should find another job, if they
had complaints; and
(c) told employees they should have brought their pro-
tected concerted complaints to Steve Walton instead of
posting them on Facebook.
On about August 18, 2010, the Respondent discharged
its employee Dontray Tull.
The Respondent discharged Tull because Tull engaged
in concerted activities for the purposes of mutual aid and
protection 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 in Section 7
of the Act in violation of Section 8(a)(1) of the Act, and
has thereby engaged in unfair labor practices affecting
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 violated Section 8(a) (1) of
the Act by discharging Dontray Tull because he engaged
in protected concerted activities, we shall order the Re-
spondent to offer him full reinstatement to his former job
or, if that job no longer exists, to a substantially equiva-
lent position, without prejudice to his seniority or any
other rights or privileges previously enjoyed, and to
make him whole for any loss of earnings or other bene-
fits suffered as a result of the Respondent’s unlawful
actions against him. Backpay shall be computed in ac-
cordance with F. W. Woolworth Co., 90 NLRB 289
(1950), with interest at the rate prescribed in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987), com-
pounded daily as prescribed in Kentucky River Medical
Center, 356 NLRB No. 8 (2010).
The Respondent shall also be required to remove from
its files any and all references to the unlawful discharge
of Dontray Tull and to notify him in writing that this has
been done and that the unlawful references will not be
used against him in any way.
ORDER
The National Labor Relations Board orders that the
Respondent, BaySys Technologies, LLC, Accomac, Vir-
ginia, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Expressing disappointment to employees that they
took their protected concerted complaints to a newspaper
rather than to the Respondent’s chief executive officer or
other internal avenues;
(b) Telling employees their protected concerted com-
plaints breached their nondisclosure agreements;
(c) Threatening employees with legal action for hav-
ing engaged in protected concerted activities;
(d) Implying that employees would be discharged
unless they issued written explanations about their pro-
tected concerted activities to other employees and to the
Eastern Shore Post newspaper and explained in writing
their intentions for their future with the Respondent;
(e) Threatening employees that their supervisors
would be conducting performance evaluations in which
their protected concerted activities would be a considera-
tion;
(f) Interrogating employees about their protected con-
certed activities;
(g) Telling employees they should find another job, if
they had complaints;
(h) Telling employees they should have brought their
protected concerted complaints to the Respondent’s chief
executive officer instead of posting them on Facebook;
(i) Discharging or otherwise discriminating against
employees because they engaged in concerted activities
for the purposes of mutual aid and protection or to dis-
courage employees from engaging in concerted activities.
(j) 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
Dontray Tull 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.
BAYS SYS TECHNOLOGIES, LLC 3
(b) Make Dontray Tull whole 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) Within 14 days from the date of this Order, re-
move from its files any references to the unlawful dis-
charge of Dontray Tull, and, within 3 days thereafter,
notify him in writing that this has been done and that its
unlawful conduct will not be used against him 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 Accomac, Virginia, copies of the attached
notice marked "Appendix."
2
Copies of the notice, on
forms provided by the Regional Director for Region 5,
after being signed by the Respondent's authorized repre-
sentative, 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. 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 custom-
arily communicates with its employees by such means.
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 pend-
ency of these proceedings, the Respondent has gone out
of business or closed the facility involved in these pro-
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 August 13, 2010.
(f) Within 21 days after service by the Region, file
with the Regional Director for Region 5 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. August 2, 2011

2 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."
Wilma B. Liebman, Chairman
Craig Becker, Member
Mark Gaston Pearce, 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 express disappointment to our employ-
ees that they took their protected concerted complaints to
a newspaper rather than to our chief executive officer or
other internal avenues.
WE WILL NOT tell our employees that their protected
concerted complaints breached their nondisclosure
agreements.
WE WILL NOT threaten our employees with legal action
for having engaged in protected concerted activities.
WE WILL NOT imply that our employees will be dis-
charged unless they issue written explanations about
their protected concerted activities to other employees
and to the Eastern Shore Post newspaper and explain in
writing their intentions for their future with us.
WE WILL NOT threaten our employees that their super-
visors would be conducting performance evaluations in
which their protected concerted activities will be a con-
sideration.
WE WILL NOT interrogate our employees about their
protected concerted activities.
WE WILL NOTtell our employees that they should find
another job if they have complaints.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
WE WILL NOT tell our employees they should have
brought their protected concerted complaints to us in-
stead of posting them on Facebook.
WE WILL NOTdischarge or otherwise discriminating
against employees because they engaged in concerted
activities for the purposes of mutual aid and protection or
to discourage employees from engaging in concerted
activities.
WE WILL NOT In any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights set forth above.
WE WILL, within 14 days from the date of the Board’s
Order, offer Dontray Tull 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 Dontray Tull whole for any loss of
earnings and other benefits suffered as a result of our
discrimination against him, less any interim earnings,
plus interest.
WE WILL, within 14 days from the date of this Order, re-
move from our files any references to the unlawful dis-
charge of Dontray Tull, and WE WILL, within 3 days thereaf-
ter, notify him in writing that this has been done and that our
unlawful conduct will not be used against him in any way.
BAYSYS TECHNOLOGIES, LLC