California County Patrol

National Labor Relations Board - Board Decisions

Aug 14, 1998

326 N.L.R.B. 16 (N.L.R.B. 1998)

326 NLRB No. 16
1
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.
California County Patrol and Brian Caplan. Case 21-
CA-32646
August 14, 1998
DECISION AND ORDER
By Members Fox, Liebman, and Brame
Upon a charge filed by Brian Caplan, an individual, on
March 26, 1998, the Acting General Counsel of the Na-
tional Labor Relations Board issued a complaint on June
16, 1998, against California County Patrol, the Respon-
dent, alleging that it has violated Section 8(a)(1), (3), and
(4) of the National Labor Relations Act. Although prop-
erly served copies of the charge and complaint, the Re-
spondent failed to file an answer.
On July 24, 1998, the Acting General Counsel filed a
Motion for Summary Judgment with the Board. On July
27, 1998, 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 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
letters dated July 1 and July 10, 1998, notified the Re-
spondent and its Trustee, respectively, that unless an an-
swer were received by July 17, 1998, a Motion for Sum-
mary Judgment would be filed.
In the absence of good cause being shown for the fail-
ure to file a timely answer, we grant the Acting General
Counsel's Motion for Summary Judgment.1
On the entire record, the makes the following

1 Although the motion indicates that the Respondent filed a volun-
tary petition under Chapter 7 of the Bankruptcy Code on April 27,
1998, it is well established that the institution of bankruptcy proceed-
ings does not deprive the Board of jurisdiction or authority to process
an unfair labor practice case to its final disposition. See Phoenix Co.,
274 NLRB 995 (1985), and cases cited therein.
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a California
corporation, contracted with the State of California,
Military Department, to provide security services for the
Armed Forces Reserve Center in Los Alamitos, Califor-
nia. During the 12-month period ending March 31, 1998,
a representative period, the Respondent, in conducting its
business operations described above, provided services
valued in excess of $50,000 for other enterprises located
within the State of California, each of which other en-
terprises, during the same period of time, sold and
shipped from its California locations goods valued in
excess of $50,000 directly to points outside the State of
California.
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 International Union, United Plant
Guard Workers of America, the Union, is a labor organi-
zation within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
About October 1997, the Respondent granted Brian
Caplan a leave of absence. Since about February 1998,
the Respondent has refused to reinstate employee Caplan
to his former position of employment or any other posi-
tion for which he is qualified. The Respondent refused
to do so because Caplan supported the Union and en-
gaged in concerted activities, to discourage employees
from engaging in these activities, and because Caplan
was issued a subpoena to testify at an unfair labor prac-
tice hearing before the Board in Cases 21–CA–31936, et
al.
CONCLUSION OF LAW
By the acts and conduct described above, the Respon-
dent has been discriminating against employees in regard
to the hire or tenure or terms and conditions of employ-
ment, thereby discouraging membership in a labor or-
ganization, has also been discriminating against employ-
ees for filing charges or giving testimony under the Act,
and has been interfering with, restraining, and coercing
employees in the exercise of the rights guaranteed in
Section 7 of the Act, thereby engaging in unfair labor
practices affecting commerce within the meaning of Sec-
tion 8(a)(3), (4), and (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),
(3), and (4) by refusing to reinstate Brian Caplan, we
shall order the Respondent to offer the discriminatee full
reinstatement to his former job or, if that job no longer
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privileges
previously enjoyed, and to make him whole for any loss
of earnings and other benefits suffered as a result of the
discrimination against him, 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 expunge from its
files any and all references to the unlawful refusal to re-
instate, and to notify the discriminatee in writing that this
has been done.
ORDER
The National Labor Relations Board orders that the
Respondent, California County Patrol, Los Alamitos,
California, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Failing and refusing to reinstate employees or oth-
erwise discriminating against employees because they
engage in union or other protected concerted activities or
because they file charges or give testimony under the
Act.
(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
Brian Caplan 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.
(b) Make Brian Caplan 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, ex-
punge from its files any and all references to the unlaw-
ful refusal to reinstate Brian Caplan, and, within 3 days
thereafter, notify him in writing that this has been done
and that the refusal to reinstate will not be used against
him 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 rec-
ords, 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 Alamitos, California, copies of the at-
tached notice marked “Appendix.’’2 Copies of the no-

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-
tice, on forms provided by the Regional Director for Re-
gion 21, 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. 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 Febuary 1,
1998.
(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.
Dated, Washington, D.C. August 14, 1998
Sarah M. Fox, Member
Wilma B. Liebman, 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 fail and refuse to reinstate employees or
otherwise discriminate against employees because they
engage in union or other protected concerted activities or
because they file charges or give testimony under the
Act.
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 Brian Caplan full reinstatement to his former

ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
CALIFORNIA COUNTY PATROL 3
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 Brian Caplan whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against him, with interest.
WE WILL within 14 days from the date of the Board's
Order, expunge from our files any and all references to
our unlawful refusal to reinstate Brian Caplan, and WE
WILL , within 3 days thereafter, notify him in writing that
this has been done and that WE WILL NOT use the refusal
to reinstate against him in any way.
CALIFORNIA COUNTY PATROL