Black Diamond Framing

National Labor Relations Board - Board Decisions

Sep 27, 2006

348 N.L.R.B. 20 (N.L.R.B. 2006)

348 NLRB No. 20
Michael Allen Logue d/b/a Black Diamond Framing
and Henry Garcia. Case 28–CA–20699
September 27, 2006
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND WALSH
The 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
Henry Garcia on March 8, 2006, the General Counsel
issued the complaint on June 30, 2006, against Michael
Allen Logue d/b/a Black Diamond Framing, the Respon-
dent, alleging that it has violated Section 8(a)(1) of the
Act. The Respondent failed to file an answer.
On July 31, 2006, the General Counsel filed a Motion
for Default Judgment with the Board. On August 1,
2006, 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 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 filed by July 14, 2006, the
Board could find that the allegations in the complaint are
true. Further, the undisputed allegations in the General
Counsel’s motion disclose that the Region, by letter
dated July 18, 2006, notified the Respondent that unless
an answer was received by July 21, 2006, a motion for
default 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 Default Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent has been owned
by Mike Logue, a sole proprietor, doing business as
Black Diamond Framing.
At all material times, the Respondent has maintained
an office and place of business in Chandler, Arizona,
herein called the Respondent’s facility, where it is en-
gaged in business as a building and framing contractor in
the construction industry performing commercial con-
struction.
During the 12-month period ending March 8, 2006, the
Respondent, in conducting its business operations de-
scribed above, purchased and received at its Chandler,
Arizona facility goods valued in excess of $50,000 di-
rectly from points outside the State of Arizona and from
other enterprises, including Foxworth Galbraith Lumber
Company and Alliance Lumber, LLC, located within the
State of Arizona, each of which other enterprises had
received goods directly from points outside the State of
Arizona.1
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 PRACTICE
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
meaning of Section 2(11) of the Act and agents of the
Respondent within the meaning of Section 2(13) of the
Act.
Michael Allen Logue Owner
Jaggs (full name unknown) Foreman
Pat (last name unknown) Acting Foreman
Since in or about February 2006, the Respondent’s
employees, including its employee Henry Garcia, en-
gaged in concerted activities with other employees for
the purposes of mutual aid and protection, by discussing
the Respondent’s failure to withhold State and Federal
taxes from employees’ wages and reporting this failure to
withhold to the appropriate authorities.
On or about March 7, 2006, the Respondent dis-
charged Garcia.
The Respondent discharged Garcia because he en-
gaged in the concerted activities described above and to
discourage employees from engaging in such activities.
CONCLUSION OF LAW
By the conduct described above, the Respondent has
interfered with, restrained, and coerced employees in the
exercise of the rights guaranteed in Section 7 of the Act,

1 The complaint does not specifically allege that the goods purchased
by the Respondent from Foxworth Galbraith Lumber Company and
Alliance Lumber, LLC, were purchased by the sellers directly from
points outside the State of Arizona. The Respondent has failed, how-
ever, to raise the issue of whether it meets the Board’s discretionary
jurisdictional standards. It is well settled that although the existence of
statutory jurisdiction may be raised at any time, the issue of discretion-
ary jurisdiction must be timely raised. See Paramedical Specialties
Services, 322 NLRB 351 fn. 1 (1996).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
and has thereby engaged in unfair labor practices affect-
ing 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 Henry Garcia, we shall order the
Respondent to offer Garcia full reinstatement to his for-
mer job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
any other rights and privileges previously enjoyed. Fur-
ther, we shall order the Respondent to make Garcia
whole for any loss of earnings and other benefits suffered
as a result of the discharge. 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 also shall be required to remove from
its files all references to Garcia’s discharge, and to notify
him in writing that this has been done and that the dis-
charge will not be used against him in any way.
ORDER
The National Labor Relations Board orders that the
Respondent, Michael Allen Logue d/b/a Black Diamond
Framing, Chandler, Arizona, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against
employees because they engage in concerted activities
for the purpose of mutual aid or protection, such as dis-
cussing the Respondent’s failure to withhold State and
Federal taxes from employees’ wages and reporting the
failure to withhold taxes to the appropriate authorities, or
to discourage employees from engaging in such activi-
ties.
(b) 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
Henry 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 and privileges previously enjoyed.
(b) Make Henry Garcia whole for any loss of earnings
and other benefits suffered as a result of his unlawful
discharge, 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 all references to the unlawful discharge of
Henry Garcia, and within 3 days thereafter, notify him in
writing that this has been done, and that the unlawful
discharge 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
electronic 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 Chandler, Arizona, copies of the attached
notice marked “Appendix.”2 Copies of the notice, on
forms provided by the Regional Director for Region 28,
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. 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 March 7, 2006.
(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.
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
violated Federal labor law and has ordered us to post and
obey this notice.

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.”
BLACK DIAMOND FRAMING 3
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
benefit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT discharge or otherwise discriminate
against you because you engage in concerted activities
for the purpose of mutual aid or protection, such as dis-
cussing our failure to withhold State and Federal taxes
from employees’ wages and reporting our failure to
withhold taxes to the appropriate authorities, or to dis-
courage you from engaging in such 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 the Board’s
Order, offer Henry Garcia full reinstatement to his for-
mer job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
any other rights and privileges previously enjoyed.
WE WILL make Henry Garcia whole for any loss of
earnings and other benefits resulting from his unlawful
discharge, with interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files all references to the unlaw-
ful discharge of Henry Garcia, and WE WILL, within 3
days thereafter, notify him in writing that this has been
done, and that the unlawful discharge will not be used
against him in any way.
MICHAEL ALLEN LOGUE D/B/A BLACK DIAMOND
FRAMING