341 N.L.R.B. 76 (N.L.R.B. 2004)

Desert Cities Nurseries

National Labor Relations Board - Board DecisionsMar 31, 2004

341 N.L.R.B. 76 (N.L.R.B. 2004)

NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive 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. Desert Cities Construction d/b/a Desert Cities Nurser- ies and Laborersâ€™ International Union of North America, Local 1184, AFLâ€“CIO. Case 21â€“CAâ€“ 35272 March 31, 2004 DECISION AND ORDER BY MEMBERS SCHAUMBER, WALSH, AND MEISBURG The General Counsel seeks a default judgment in this case on the ground that the Respondent has withdrawn its answer to the complaint.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 a charge, first amended charge and second amended charge filed by Laborersâ€™ International Union of North America, Local 1184, AFLâ€“CIO (the Union) on August 2, August 7, and Octo- ber 15, 2002, respectively, the General Counsel issued the complaint on September 26, 2003, against Desert Cities Construction d/b/a Desert Cities Nurseries, the Respondent, alleging that it has violated Section 8(a)(1) of the Act. The Respondent filed an answer to the com- plaint. On January 22, 2004, however, the Respondent withdrew its answer. On February 18, 2004, the General Counsel filed a Motion for Default Judgment with the Board. On Febru- ary 25, 2004, 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 Default Judgment Section 102.20 of the Boardâ€™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 within 14 days from ser- vice of the complaint, all the allegations in the complaint would be considered admitted. Further, the undisputed allegations in the General Counselâ€™s motion disclose that the Region, by letter dated December 29, 2004, notified the Respondent that unless an answer was received by January 6, 2004, a motion for default judgment would be filed. On December 30, 2003, the Respondent filed an answer to the complaint. However, by letter dated Janu- ary 22, 2004, the Respondent withdrew its answer. The withdrawal of an answer has the same effect as a failure to file an answer, i.e., the allegations in the complaint must be considered to be true.1 Accordingly, we grant the General Counselâ€™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, a California corporation, with its office and place of business located at 41555 Yucca Lane, Bermuda Dunes, California (the facility), has been engaged in the business of pool and spa construction. During the 12-month period ending November 11, 2002, a representative period, the Respondent, in con- ducting its business operations described above, derived gross revenues in excess of $500,000 and purchased and received at its Bermuda Dunes, California facility prod- ucts, goods, and materials valued in excess of $50,000 directly from 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 Laborersâ€™ International Union of North America, Local 1184, AFLâ€“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, 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: Eddie Earl Cramlet Vice-President Lowell Allen Wooden President About May 8, 2002, the Respondent, by Eddie Earl Cramlet, at the facility, threatened to discharge employ- ees and to replace them with subcontractors because they engaged in protected concerted activity. About May 8, 2002, the following employees of the Respondent concertedly complained to the Respondent regarding their wages, by demanding that their wages be increased: Santiage G. Acevedo Jose Linares Lucio B. Acevedo Cruz Jorge A. Linares Martin Acevedo Alex Lopez Vincente Aldama Daniel Marmolejo Marcario Almodovar Rodolfo Marmolejo Jose Enrique Alvarez Normando Medina Sergion Alvarez Victor Mendez 1 See Maislin Transport, 274 NLRB 529 (1985). 341 NLRB No. 76 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 Jose E. Arevalo Mejia Eduardo Menjivar Juan Ramon Argueta Luis Montova Alfredo Blancarte Juan C. Munoz Jose Jesus Blancarte Juan Jesus Nieto Martinez Nasiyr K. Burris Julio Cesar Nogues Jose Cortez Abraham Olvera Marcos Olvera Cortez Marcelino Olvera Alonzo Cuadros Juan Ortiz Enrique Cuevas Pablo Paloalto Roberto Dominguez Jorge Paz Juan Carlos Espinoza Michael Penalver Isidoro Flores Raul Rabago Carlos Ramirez Juarez Francisco Garcia Guadalupe Garcia Jr. Jose Ramos Jose Feliz Gomez Guillon Carlos Alberto Rivas Eugenio Hernandez Jose T. Rodriguez Horacio Hernandez Fidel Ruiz Miguel A. Hernandez Sergio Ruiz Cancio Oscar Coca Hernandez Dolores Sanchez Rolando Ibarra Enrique Sanchez Jose Jimenez Salvador Santoyo Jose Segura Frank Solis David E. Solorzano Rutilio Tinoco Pedro Valdivia Jose Soto Valenzuela Lazaro Vargas Molina Randy Villareal Benjamin Zamora Cristobal Zarate About May 8, 2002, the Respondent, by Eddie Earl Cramlet, discharged the 66 employees named above. The Respondent discharged the employees because the employees engaged in protected concerted activity, and to discourage employees from engaging in these activi- ties. In the alternative, since about May 8, 2002, certain employees of the Respondent employed at the facility including those named above, ceased work concertedly and engaged in a strike. The strike was caused by the Respondentâ€™s unfair labor practices set forth above. About May 9, 2002, by the Union, the same 66 em- ployees who had engaged in the strike described above, by letter and in person, made an unconditional offer to return to their former positions of employment. Since about May 9, 2002, the Respondent has failed and re- fused to reinstate the 66 employees to their former posi- tions of employment. About May 10, 2002, the Respondent, by Lowell Allen Wooden, while in a field near the facility, engaged in surveillance of employeesâ€™ union and other protected concerted activity. CONCLUSION OF LAW By the acts and conduct described above, the Respon- dent has been interfering with, restraining, and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act in violation of Section 8(a)(1) of the Act. The Respondentâ€™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)(1) of the Act by discharging the 66 employees named above, and by failing and refusing to reinstate these employees after they made an unconditional offer to return to work, 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. Further, we shall order the Respondent to make each of these employees whole for any loss of earnings and other benefits suffered as a re- sult of the Respondentâ€™s unlawful conduct. 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 and records any and all references to the unlaw- ful discharges and failure to reinstate the employees, and to notify the employees in writing that this has been done. ORDER The National Labor Relations Board orders that the Respondent, Desert Cities Construction d/b/a Desert Cit- ies Nurseries, Bermuda Dunes, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Threatening to discharge employees or to replace them with a subcontractor because they engaged in pro- tected concerted activities. (b) Discharging employees because they engage in protected concerted activities and failing and refusing to reinstate unfair labor practice strikers who made uncon- ditional offers to return to work. (c) Engaging in surveillance of employeesâ€™ union and other protected activity. (d) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act. DESERT CITIES NURSERIES 3 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 the employees named below full reinstatement to their former jobs, or if those jobs no longer exist, to substan- tially equivalent positions of employment, without preju- dice to their seniority or any other rights or privileges previously enjoyed, dismissing if necessary, any re- placements: Santiage G. Acevedo Jose Linares Lucio B. Acevedo Cruz Jorge A. Linares Martin Acevedo Alex Lopez Vincente Aldama Daniel Marmolejo Marcario Almodovar Rodolfo Marmolejo Jose Enrique Alvarez Normando Medina Sergion Alvarez Victor Mendez Jose E. Arevalo Mejia Eduardo Menjivar Juan Ramon Argueta Luis Montova Alfredo Blancarte Juan C. Munoz Jose Jesus Blancarte Juan Jesus Nieto Martinez Nasiyr K. Burris Julio Cesar Nogues Jose Cortez Abraham Olvera Marcos Olvera Cortez Marcelino Olvera Alonzo Cuadros Juan Ortiz Enrique Cuevas Pablo Paloalto Roberto Dominguez Jorge Paz Juan Carlos Espinoza Michael Penalver Isidoro Flores Raul Rabago Carlos Ramirez Juarez Francisco Garcia Guadalupe Garcia Jr. Jose Ramos Jose Feliz Gomez Guillon Carlos Alberto Rivas Eugenio Hernandez Jose T. Rodriguez Horacio Hernandez Fidel Ruiz Miguel A. Hernandez Sergio Ruiz Cancio Oscar Coca Hernandez Dolores Sanchez Rolando Ibarra Enrique Sanchez Jose Jimenez Salvador Santoyo Jose Segura Frank Solis David E. Solorzano Rutilio Tinoco Pedro Valdivia Jose Soto Valenzuela Lazaro Vargas Molina Randy Villareal Benjamin Zamora Cristobal Zarate (b) Make whole the employees named above for any loss of wages and other benefits they may have suffered as a result of the unlawful discharges and failure to rein- state them, with interest, as set forth in the remedy sec- tion of this decision. (c) Within 14 days from the date of this Order, remove from its records and files any references to the unlawful discharges and failure to reinstate the employees listed above, and within 3 days thereafter notify the employees in writing that this has been done and that the discharges and failure to reinstate will not be used against them 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 Bermuda Dunes, California, copies of the attached notice marked â€œAppendix.â€2 Copies of the no- tice, on forms provided by the Regional Director for Re- gion 21, after being signed by the Respondentâ€™s author- ized representative, shall be translated into Spanish, and both Spanish and English notices 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 no- tices are not altered, 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 facility involved in these proceedings, the Re- spondent shall duplicate 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 May 8, 2002. (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. March 31, 2004 Peter C. Schaumber, Member Dennis P. Walsh, Member 2 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading â€œPosted by Order of the Na- tional Labor Relations Boardâ€ shall read â€œPosted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.â€ DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 Ronald Meisburg, Member (SEAL) NATIONAL LABOR RELATIONS 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 any 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 threaten to discharge our employees or to replace them with a subcontractor because of their protected concerted activities. WE WILL NOT discharge employees because they en- gage in protected concerted activities and WE WILL NOT fail and refuse to reinstate unfair labor practice strikers who have made unconditional offers to return to work. WE WILL NOT engage in surveillance of our employ- eesâ€™ union and other protected 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 Boardâ€™s Order, offer the following employees full reinstatement 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 privileges previously enjoyed: Santiage G. Acevedo Jose Linares Lucio B. Acevedo Cruz Jorge A. Linares Martin Acevedo Alex Lopez Vincente Aldama Daniel Marmolejo Marcario Almodovar Rodolfo Marmolejo Jose Enrique Alvarez Normando Medina Sergion Alvarez Victor Mendez Jose E. Arevalo Mejia Eduardo Menjivar Juan Ramon Argueta Luis Montova Alfredo Blancarte Juan C. Munoz Jose Jesus Blancarte Juan Jesus Nieto Martinez Nasiyr K. Burris Julio Cesar Nogues Jose Cortez Abraham Olvera Marcos Olvera Cortez Marcelino Olvera Alonzo Cuadros Juan Ortiz Enrique Cuevas Pablo Paloalto Roberto Dominguez Jorge Paz Juan Carlos Espinoza Michael Penalver Isidoro Flores Raul Rabago Carlos Ramirez Juarez Francisco Garcia Guadalupe Garcia Jr. Jose Ramos Jose Feliz Gomez Guillon Carlos Alberto Rivas Eugenio Hernandez Jose T. Rodriguez Horacio Hernandez Fidel Ruiz Miguel A. Hernandez Sergio Ruiz Cancio Oscar Coca Hernandez Dolores Sanchez Rolando Ibarra Enrique Sanchez Jose Jimenez Salvador Santoyo Jose Segura Frank Solis David E. Solorzano Rutilio Tinoco Pedro Valdivia Jose Soto Valenzuela Lazaro Vargas Molina Randy Villareal Benjamin Zamora Cristobal Zarate WE WILL make these employees whole, with interest, for any loss of earnings and other benefits suffered as a result of our unlawful action against them. WE WILL, within 14 days from the date of the Boardâ€™s Order, remove from our files any and all references to the unlawful discharges and failure to reinstate these em- ployees, and, WE WILL 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. DESERT CITIES CONSTRUCTION D/B/A DESERT CITIES NURSERIES