I.C.E. Electric, Inc.

National Labor Relations Board - Board Decisions

Jun 11, 2003

339 N.L.R.B. 247 (N.L.R.B. 2003)

I.C.E. ELECTRIC, INC. 247

I.C.E. Electric, Inc., Early Warning Security, Inc. and
International Brotherhood of Electrical Work-
ers, Local Union 317, AFL–CIO. Case 9–CA–
38707
June 11, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND WALSH
The General Counsel seeks a default judgment1 in this
case on the ground that the Respondent has failed to file
an answer to the consolidated complaint and compliance
specification. Upon a charge filed by the Union on Au-
gust 21, 2001, the General Counsel issued the complaint
and compliance specification on October 25, 2001,
against alleged single employer I.C.E. Electric, Inc. and
Early Warning Security, Inc. (the Respondent), alleging
that the Respondent has violated Section 8(a)(1) and (3)
of the Act and setting forth the amount of backpay due.
The Respondent failed to file an answer.
On January 28, 2002, the General Counsel filed a Mo-
tion for Summary Judgment and memorandum in support
with the Board. On February 1, 2002, 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 allega-
tions 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 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. Similarly, Section 102.56 of the Board’s Rules
and Regulations provides that the allegations in a com-
pliance specification shall be deemed admitted if an an-
swer is not filed within 21 days from service of a com-
pliance specification. In addition, the consolidated com-
plaint and compliance specification affirmatively noted
that unless an answer to the complaint was filed within
14 days of service, and an answer to the compliance
specification was filed within 21 days of service, all the
allegations in the complaint and compliance specification
would be considered admitted. Further, the undisputed
allegations in the General Counsel’s motion disclose that
the Region, by letter dated November 30, 2001, notified

1 The General Counsel’s motion requests summary judgment on the
ground that the Respondent has failed to file an answer. Accordingly,
we construe the General Counsel’s motion as a Motion for Default
Judgment.
the Respondent that unless an answer was received by
December 11, 2001, A Motion for Default Judgment
would be filed.2 Nevertheless, the Respondent did not
file an answer.
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, I.C.E., located at 3901 Brown
Street, Ashland, Kentucky, has been an electrical con-
tractor engaged in construction work. At all material
times, Early Warning, also located at 3901 Brown Street,
Ashland, Kentucky, has been engaged in the business of
residential/commercial alarm monitoring.
At all material times, I.C.E. and Early Warning have
been affiliated business enterprises with common offi-
cers, ownership, directors, management, and supervision;
have formulated and administered a common labor pol-
icy; have shared common premises and facilities; have
provided services for and made sales to each other; have
interchanged personnel with each other and have held
themselves out to the public as single-integrated business
enterprises. Based on the foregoing, I.C.E. and Early
Warning constitute a single integrated business enterprise
and a single employer within the meaning of the Act.
Based on a projection of its operations since about
February 13, 2001, when it commenced the business op-
eration described above, the Respondent would annually
provide services valued in excess of $50,000 to Patton
Construction, Inc., an enterprise located within the
Commonwealth of Kentucky. Patton Construction, Inc.
is a general contractor engaged in the construction busi-
ness and annually performs services valued in excess of
$50,000 in states other than the Commonwealth of Ken-
tucky.
We find that, at all material times, the Respondent has
been an employer engaged in commerce within the
2 Copies of the consolidated complaint and compliance specification
and the November 30, 2001 letter were sent to the Respondent by certi-
fied and regular mail. The copies sent by certified mail were returned
to the Regional Office marked “refused” and/or “unclaimed.” The
consolidated complaint and compliance specification sent by regular
mail was not returned, and the letter sent by regular mail was returned
marked “return to sender,” with the Respondent’s address crossed out.
It is well settled that a respondent’s failure or refusal to accept certified
mail cannot serve to defeat the purposes of the Act. See, e.g., Michigan
Expediting Service, 282 NLRB 210 fn. 6 (1986). Further, the failure of
the Postal Service to return the copy of the consolidated complaint and
compliance specification that was served by regular mail indicates
actual receipt of that document. See Lite Flight, Inc., 285 NLRB 649,
650 (1987). Accord: Express Gourmet, 338 NLRB No. 114 (2003).
339 NLRB No. 36
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 248
meaning of Section 2(2), (6), and (7) of the Act and that
International Brotherhood of Electrical Workers, Local
Union 317, AFL–CIO is a labor organization within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times, Christopher Hutchinson, presi-
dent/CEO, and Bob Hunt, director of operations, have
been supervisors of Respondent within the meaning of
Section 2(11) of the Act and agents of Respondent within
the meaning of Section 2(13) of the Act.
Since about March 21, 2001, the Respondent has failed
and refused to hire or consider for employment the fol-
lowing applicants for employment:

Ronald D. Cole
Warren G. Spry
Charles N. Taylor

Since about March 22, 2001, the Respondent has also
failed and refused to hire or consider for employment the
following applicants for employment:

Scott E. Burnett
Kevin W. Mullins

The Respondent engaged in the conduct described
above because the named applicants for employment
formed, joined, or assisted the Union and engaged in
concerted activities, and to discourage employees from
engaging in these activities.
CONCLUSION OF LAW
By the acts and conduct described above, the Respon-
dent has discriminated in regard to hire or tenure or terms
or conditions of employment of employees or applicants
for employment, thereby discouraging membership in a
labor organization in violation of Section 8(a)(3) and (1)
of the Act. See Just Electric, Inc., 338 NLRB No. 96
(2003) (not reported in Board volumes) (citing FES, 331
NLRB 9 (2000), supplemental decision 333 NLRB 66
(2001), enfd. 301 F.3d 83 (3d Cir. 2002)). The Respon-
dent’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. The compliance speci-
fication, which is consolidated with the complaint, states
that the General Counsel knows of only three employees
who have been hired by the Respondent since March 21,
2001. It further alleges that the first three applicant-
discriminatees who applied for employment on March
21, 2001 (Cole, Spry, and Taylor) are entitled to instate-
ment to those positions.3 Accordingly, as these allega-
tions are uncontroverted, we shall order the Respondent,
in the event it resumes the same or similar business op-
erations,4 to offer them instatement to jobs for which
they applied, or if those jobs no longer exist, to substan-
tially equivalent jobs, without prejudice to their seniority
or any other rights or privileges they would have enjoyed
absent the discrimination against them. We shall further
order the Respondent to make Cole, Spry, and Taylor
whole for any loss of earnings and other benefits suffered
as a result of the discrimination against them, as set forth
in the compliance specification, with interest as pre-
scribed in New Horizons for the Retarded, 283 NLRB
1173 (1987), minus any tax withholdings required by
Federal and State laws.5
In addition, with respect to the other two discrimina-
tees (Burnett and Mullins), we find that a refusal-to-
consider remedy is appropriate. See FES, supra, 331
NLRB at 14–15. Therefore, we shall order the Respon-
dent, in the event it resumes the same or similar business
operations, to place Burnett and Mullins in the position
they would have been, absent discrimination, for consid-
eration for future openings, consider them for the open-
ings in accord with nondiscriminatory criteria, and notify

3 In FES, supra, the Board held that “proof of the availability of
openings cannot be deferred to the compliance stage of the proceed-
ing.” 331 NLRB at 14. Here, the allegations that there were three open-
ings are contained in the compliance specification rather than the com-
plaint. However, the compliance specification is consolidated with the
complaint, and has been presented to the Board simultaneously with the
complaint on the General Counsel’s Motion for Default Judgment. In
these circumstances, we find that the FES requirement has effectively
been satisfied, and that it would serve no purpose to require the General
Counsel to issue an amended complaint alleging the same facts that are
currently alleged in the consolidated compliance specification. Cf. Jet
Electric Co., 334 NLRB 1059 (2001) (holding in abeyance final deter-
mination of appropriate remedy for refusal to consider for hire or hire
violations pending a remand for a hearing before an administrative law
judge, or, alternatively, issuance of an amended complaint and filing of
new motion for summary judgment, addressing the number of openings
that were available to the eight applicant-discriminatees), supplemental
decision 338 NLRB 1148 (2002).
4 The compliance specification states that the Respondent laid off all
employees and curtailed all of its business operations as an electrical
contractor engaged in construction work on May 4, 2001, and the speci-
fication therefore terminates the backpay period on that date.
5 The consolidated complaint and compliance specification requests
an order requiring Respondent to “reimburse any discriminatee entitled
to a monetary award for any extra Federal and/or state income taxes
that may result from a lump sum payment of such award.” Such a
remedy would involve a change in Board law. See, e.g., Hendrickson
Bros., 272 NLRB 438, 440 (1985), enfd. 762 F.2d 990 (2d Cir. 1985).
In light of this, we believe that the appropriateness of this proposed
remedy should be resolved after a full briefing by affected parties. See
Kloepfers Floor Covering, Inc., 330 NLRB 811 fn. 1 (2000). Because
there has been no such briefing in this no-answer case, we decline to
include this additional relief in the order here. See Tres Estrellas De
Oro, 338 NLRB 503 (2002).
I.C.E. ELECTRIC, INC. 249
them, the Union, and the Regional Director in writing of
future openings in positions for which Burnett and Mul-
lins applied or substantially equivalent positions, until
such time as the Regional Director determines the case
should be closed.
Further, we shall require the Respondent to remove
from its files any and all references to the unlawful fail-
ure and refusal to hire or consider for hire the five dis-
criminatees, and to notify them in writing that this has
been done.
Finally, as the Respondent has ceased operations, we
shall order it to mail a copy of the attached notice to the
Union and to the last known addresses of its employees
in order to notify them of the outcome of this proceeding.
ORDER
The National Labor Relations Board orders that the
Respondent single employer, I.C.E. Electric, Inc. and
Early Warning Security, Inc., Ashland, Kentucky, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to hire or to consider for hire
employees because they formed, joined, or assisted the
International Brotherhood of Electrical Workers, Local
Union 317, AFL–CIO and engaged in concerted activi-
ties, or to discourage employees from engaging in these
activities.
(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) In the event the Respondent resumes the same or
similar business operations, within 14 days thereafter,
offer Ronald D. Cole, Warren G. Spry, and Charles N.
Taylor instatement to the positions to which they applied
or, if those positions no longer exist, to substantially
equivalent positions, without prejudice to their seniority
or other rights or privileges they would have enjoyed
absent the discrimination against them.
(b) Make Ronald D. Cole, Warren G. Spry, and
Charles N. Taylor whole for any loss of earnings and
other benefits suffered as a result of the discrimination
against them by paying them the amounts set forth be-
low, plus interest and minus tax withholdings required by
Federal and State laws, as set forth in the remedy section
of this decision.

Backpay Benefit Contribution TOTAL
Ronald D. Cole $ 689.92 $ 126.20 $ 816.12
Warren G. Spry 2,439.30 126.20 2,565.50
Charles N. Taylor 0 0 0
$ 3,381.62

(c) In the event the Respondent resumes the same or
similar business operations, within 14 days thereafter,
place Scott E. Burnett and Kevin W. Mullins in the posi-
tion they would have been, absent discrimination, for
consideration for future openings, consider them for the
openings in accord with nondiscriminatory criteria, and
notify them, International Brotherhood of Electrical
Workers, Local Union 317, AFL–CIO, and the Regional
Director for Region 9, in writing, of future openings in
positions for which Burnett and Mullins applied or sub-
stantially equivalent positions.
(d) Within 14 days from the date of this Order, remove
from its files any and all references to the unlawful fail-
ure and refusal to hire or to consider for hire Ronald C.
Cole, Warren G. Spry, Charles N. Taylor, Scott E. Bur-
nett, and Kevin W. Mullins, and 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.
(e) 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.
(f) Within 14 days after service by the Region, dupli-
cate and mail, at its own expense and after being signed
by the Respondent’s authorized representative, a copy of
the attached notice marked “Appendix”6 to the Union
and all employees who have been employed by the Re-
spondent at any time since March 21, 2001.
(g) 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
MAILED 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 mail and obey
this notice.

6 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Mailed by Order of the Na-
tional Labor Relations Board” shall read “Mailed Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 250

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 fail and refuse to hire or to consider for
hire employees because they form, join or assist the In-
ternational Brotherhood of Electrical Workers, Local
Union 317, AFL–CIO and engage in concerted activities,
or to discourage employees from engaging in these ac-
tivities.
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, in the event we resume the same or similar
business operations, within 14 days thereafter, offer
Ronald D. Cole, Warren G. Spry, and Charles N. Taylor
instatement to the positions to which they applied or, if
those positions no longer exist, to substantially equiva-
lent positions, without prejudice to their seniority or
other rights or privileges they would have enjoyed absent
the discrimination against them.
WE WILL make Ronald D. Cole, Warren G. Spry, and
Charles N. Taylor whole for any loss of earnings and
other benefits suffered as a result of the discrimination
against them by paying them the amounts set forth in the
Board’s Order, plus interest and minus tax withholdings
required by Federal and State laws.
WE WILL, in the event we resume the same or similar
business operations, within 14 days thereafter, place
Scott E. Burnett and Kevin W. Mullins in the position
they would have been, absent discrimination, for consid-
eration for future openings, consider them for the open-
ings in accord with nondiscriminatory criteria, and notify
them, International Brotherhood of Electrical Workers,
Local Union 317, AFL–CIO, and the Regional Director
for Region 9, in writing, of future openings in positions
for which Burnett and Mullins applied or substantially
equivalent positions.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any and all references to the
unlawful failure and refusal to hire or to consider for hire
Ronald C. Cole, Warren G. Spry, Charles N. Taylor,
Scott E. Burnett, and Kevin W. Mullins, 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.
I.C.E. ELECTRIC, INC., AND EARLY WARNING
SECURITY, INC.