Island Management Professionals, Inc.

National Labor Relations Board - Board Decisions

Aug 4, 2015

362 N.L.R.B. 1298 (N.L.R.B. 2015)

1298 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Island Management Partners, Inc. and International
Alliance of Theatrical Stage Employees and
Moving Picture Technicians, Artists and Allied
Crafts of the United States, Its Territories and
Canada, Local 500, AFL–CIO, CLC. Case 12–
CA–140702
August 4, 2015
DECISION AND ORDER
BY MEMBERS HIROZAWA, JOHNSON,
AND MCFERRAN
The General Counsel seeks a default judgment in this
case on the ground that Island Management Partners, Inc.
(the Respondent) has failed to file an answer to the com-
plaint. Upon a charge filed on November 12, 2014, by
International Alliance of Theatrical Stage Employees and
Moving Picture Technicians, Artists and Allied Crafts of
the United States, its Territories and Canada, Local 500,
AFL–CIO, CLC (the Union), the General Counsel issued
a complaint on February 27, 2015, against the Respond-
ent, alleging that it has violated Section 8(a)(5) and (1) of
the Act. The Respondent failed to file an answer.
On May 11, 2015, the General Counsel filed with the
Board a Motion for Default Judgment, with exhibits at-
tached. Thereafter, on May 14, 2015, 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 with the
Board. The allegations in the motion are therefore un-
disputed. However, on May 21, 2015, the Respondent’s
president, Ian Roberson, filed with Region 12 a letter
with a subject line including the case number and the
phrase “Response to Complaint.”
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 13, 2015,
the Board may find, pursuant to a motion for default
judgment, that the allegations in the complaint are true.
Further, the undisputed allegations in the General Coun-
sel’s motion disclose that the Region, by letter dated
March 26, 2015, notified the Respondent that unless an
answer was received by April 2, 2015, a motion for de-
fault judgment would be filed. Nevertheless, the Re-
spondent failed to file an answer or a request for an ex-
tension of time by April 2, 2015, and for the reasons dis-
cussed below, we find that the Respondent has not estab-
lished good cause to excuse that failure.
The record does not indicate that the Respondent is
represented by counsel. Although the Board, unlike the
federal courts,1 has permitted respondent corporations to
appear without counsel, through an owner, for example,
the Board has consistently held that the choice to forego
representation by counsel does not establish good cause
for failing to file a timely answer. See, e.g., Patrician
Assisted Living Facility, 339 NLRB 1153, 1153 (2003);
Sage Professional Painting Co., 338 NLRB 1068, 1068
(2003). See also Starrs Group Home, Inc., 357 NLRB
1219, 1219 (2011); Lockhart Concrete, 336 NLRB 956,
957 (2001). Where a respondent, represented by counsel
or not, fails to respond to complaint allegations until after
the Notice to Show Cause has issued, despite having
been notified in writing that it must do so, and has failed
to establish good cause for its failure to do so, subse-
quent attempts to file an answer will be denied as un-
timely. Patrician Assisted Living Facility, supra, 339
NLRB at 1153–1154, citing Kenco Electric & Signs, 325
NLRB 1118, 1118 (1998).
Here, there is no dispute that the Respondent did not
answer the complaint until after the Notice to Show
Cause had issued on May 14, 2015, despite the General
Counsel’s repeated directions to do so. In his May 21,
2015 submission purporting to respond to the complaint,
Roberson appears to assert that the Respondent has a
meritorious defense to the complaint allegations. Rob-
erson further contends, apologizing for the late submis-
sion, that “I am a very small company and most of your
correspondence sat at the post office while I have been
working in the field.” He also stated that, until recently,
he believed that documents submitted pursuant to the
Region’s requests constituted responses to the complaint,
although he now understands that the complaint required
a separate response.
In contrast, the General Counsel submitted a copy of
correspondence between the Region and the Respondent
regarding the deadline for filing an answer, attached as
an exhibit to the motion for default judgment. As noted
above, by letter dated March 26, 2015, the General
1 See Rowland v. California Men’s Colony, Unit II Men’s Advisory
Council, 506 U.S. 194, 201–202 (1993) (“It has been the law for the
better part of two centuries . . . that a corporation may appear in the
federal courts only through licensed counsel.”); Palazzo v. Gulf Oil
Corp., 764 F.2d 1381, 1385 (11th Cir. 1985) (“The rule is well estab-
lished that a corporation is an artificial entity that can act only through
agents, cannot appear pro se, and must be represented by counsel”),
cert. denied 474 U.S. 1058 (1986).
Member Johnson does not find it necessary to discuss the general
practice of the federal courts with regard to pro se litigants in deciding
the instant matter.
362 NLRB No. 158

ISLAND MANAGEMENT PARTNERS, INC. 1299
Counsel warned the Respondent that a motion for sum-
mary judgment would be filed if the Respondent failed to
file an answer by April 2, 2015 (Exh. 4). In his May 21,
2015 letter to the Region, Roberson acknowledged that
his submission was untimely but failed to offer any justi-
fication other than the failure to check his mail for sever-
al months and the mistaken belief that previously submit-
ted documents constituted an answer to the complaint.
Accordingly, we find that the Respondent has failed to
establish good cause for the failure to file a timely an-
swer. Further, regarding the Respondent’s claim that it
has a meritorious defense, the Board will not address a
respondent’s assertions that it has a meritorious defense
unless good cause has been shown for the failure to file a
timely response. Dong-A Daily North America, Inc., 332
NLRB 15, 16 (2000).
In the absence of good cause being shown for the fail-
ure to file a timely answer, we deem the allegations in
the complaint to be admitted as true, and we grant the
General Counsel’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 a Del-
aware corporation with an office and place of business
located at 1820 N.E. Jensen Beach Boulevard, Jensen
Beach, Florida (the Respondent’s facility), and has been
engaged in providing stage and display presentation ser-
vices.
During the 12-month period ending December 31,
2014, the Respondent, in conducting its operations de-
scribed above, provided services valued in excess of
$50,000 in States other than the State of Florida.
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 the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times, Ian Roberson held the position of
the Respondent’s principal and has been a supervisor of
the Respondent within the meaning of Section 2(11) of
the Act and an agent of the Respondent within the mean-
ing of Section 2(13) of the Act.
The following employees of the Respondent (the unit)
constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of the
Act:

All stewards, heads of department, leads/requests,
stagehand/truck loaders, high end technicians, and
workers employed by Respondent doing all carpentry,
electrical, lighting, properties, wardrobe, projection,
audio-visual, sound, video, curtains, draperies, pipe &
drape, platforms, staging, scaffolding and other related
work recognized as traditionally falling within the ju-
risdiction of the Union, including the take-in and take-
out, handling, installation, maintenance, repair, assem-
bling and dismantling, the loading and unloading of
trucks or vans of any and all equipment used in connec-
tion with any show, presentation, meeting, banquet, in-
cluding rehearsals, and any television or videotaping,
and workers operating the following types of equip-
ment: lasers, pyrotechnics, electrical generators, booms,
forklifts, high-rise lifts, scissor lifts, follow spots and
any other equipment traditionally coming under the ju-
risdiction of the Union.

On about November 30, 2010, and at all material
times, the Respondent recognized the Union as the ex-
clusive collective-bargaining representative of the unit.
This recognition has been embodied in a collective-
bargaining agreement between the Respondent and the
Union, which was effective by its terms from November
30, 2010, to November 30, 2013.
At all times since November 30, 2010, based on Sec-
tion 9(a) of the Act, the Union has been the exclusive
collective-bargaining representative of the unit.
The collective-bargaining agreement described above
contains a provision in article II pursuant to which the
Respondent agreed to contact the Union to seek the refer-
ral of qualified workers from the Union’s exclusive hir-
ing hall to perform the bargaining unit work, as described
above in the unit description.
Since about November 10, 2014, the Respondent has
stopped seeking employees from the hiring hall operated
by the Union for work at the Homestead Speedway in
Homestead, Florida, in accordance with the referral pro-
visions set forth in the collective-bargaining agreement
described above.
Since about November 10, 2014, the Respondent has
subcontracted the work of the unit.
The subjects set forth above relate to wages, hours, and
other terms and conditions of employment of the unit and
are mandatory subjects for the purposes of collective
bargaining.
The Respondent engaged in the conduct described
above without prior notice to the Union and without af-
fording the Union an opportunity to bargain with the
Respondent with respect to this conduct and/or the ef-
fects of this conduct.2
2 The complaint includes the statement that the Respondent engaged
in this conduct without first bargaining with the Union to an overall
good-faith impasse for a successor collective-bargaining agreement. In

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1300
CONCLUSION OF LAW
By the conduct described above, the Respondent has
been failing and refusing to bargain collectively and in
good faith with the exclusive collective-bargaining repre-
sentative of its employees in violation of Section 8(a)(5)
and (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)(5) and
(1) of the Act by failing to seek employees from the hir-
ing hall operated by the Union and subcontracting unit
work without prior notice to the Union and without af-
fording the Union an opportunity to bargain with the
Respondent with respect to this conduct and/or the ef-
fects of this conduct, we shall order the Respondent to
bargain with the Union, on request, as the exclusive col-
lective-bargaining representative of the employees in the
unit concerning the use of the Union’s hiring hall, the
subcontracting of unit work, and the effects of the Re-
spondent’s conduct.
Further, in order to remedy the Respondent’s failure to
utilize the Union’s hiring hall since about November 10,
2014, as set forth in the November 30, 2010, to Novem-
ber 30, 2013 collective-bargaining agreement, we shall
order the Respondent to comply with the Union’s hiring
hall provisions, offer immediate and full employment to
those applicants who would have been referred to the
Respondent for employment by the Union were it not for
the Respondent’s unlawful conduct, and to make them
whole for any losses suffered by reason of the Respond-
ent’s failure to hire them.3 Backpay shall be computed in
the manner set forth in F. W. Woolworth Co., 90 NLRB
289 (1950), with interest at the rate prescribed in New
Horizons, 283 NLRB 1173 (1987), compounded daily as
the motion for default judgment, the General Counsel requests that the
Board order the Respondent to, on request, bargain in good faith with
the Union for a successor collective-bargaining agreement. We decline
to order such a remedy, however, in the absence of a complaint allega-
tion that the Union requested bargaining with the Respondent for a
successor agreement and the Respondent refused.
3 We leave to the compliance stage the determination of which, if
any, employees fall into this category.
In this regard, Member Johnson does not now decide issues concern-
ing the validity of J. E. Brown Electric, 315 NLRB 620 (1994). For a
discussion of the issues involved, see concurring opinion in Brown, 315
NLRB at 624 (Members Stephens and Cohen, concurring), and dissent-
ing opinion in M. J. Wood & Associates, Inc., 325 NLRB 1065, 1068
fn. 9 (1998) (Member Hurtgen, dissenting).
prescribed in Kentucky River Medical Center, 356 NLRB
6 (2010).4 Employment and backpay issues will be re-
solved by a factual inquiry at the compliance stage of the
proceeding. J. E. Brown Electric, supra.
In addition, we shall order the Respondent to
compensate the applicants for the adverse tax conse-
quences, if any, of receiving lump-sum backpay awards
and to file a report with the Social Security Administra-
tion allocating the backpay awards to the appropriate
calendar quarters for each applicant.
ORDER
The National Labor Relations Board orders that the
Respondent, Island Management Partners, Inc., Jensen
Beach, Florida, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Failing and refusing to bargain collectively and in
good faith with International Alliance of Theatrical Stage
Employees and Moving Picture Technicians, Artists and
Allied Crafts of the United States, its Territories and
Canada, Local 500, AFL–CIO, CLC as the exclusive
collective-bargaining representative of the employees in
the following appropriate unit by unilaterally failing to
utilize the Union’s hiring hall in accordance with the
referral provisions set forth in the collective-bargaining
agreement and by unilaterally subcontracting unit work:

All stewards, heads of department, leads/requests,
stagehand/truck loaders, high end technicians, and
workers employed by Respondent doing all carpentry,
electrical, lighting, properties, wardrobe, projection,
audio-visual, sound, video, curtains, draperies, pipe &
drape, platforms, staging, scaffolding and other related
work recognized as traditionally falling within the ju-
risdiction of the Union, including the take-in and take-
out, handling, installation, maintenance, repair, assem-
bling and dismantling, the loading and unloading of
trucks or vans of any and all equipment used in connec-
tion with any show, presentation, meeting, banquet, in-
cluding rehearsals, and any television or videotaping,
and workers operating the following types of equip-
ment: lasers, pyrotechnics, electrical generators, booms,
forklifts, high-rise lifts, scissor lifts, follow spots and
4 In the complaint, the General Counsel requests that applicants be
reimbursed for any out-of-pocket expenses incurred while searching for
work as a result of the Respondent’s unlawful conduct. Because the
relief sought would involve a change in Board law, we believe that the
appropriateness of this proposed remedy should be resolved after a full
briefing by the affected parties, and there has been no such briefing in
this case. Accordingly, we decline to order this relief at this time. See,
e.g., H.O.P.E. Program, 362 NLRB No. 128 fn. 1 (2015); Ishikawa
Gasket America, Inc., 337 NLRB 175, 176 (2001), enfd. 354 F.3d 534
(6th Cir. 2004), and cases cited therein.

ISLAND MANAGEMENT PARTNERS, INC. 1301
any other equipment traditionally coming under the ju-
risdiction of the Union.

(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) On request, bargain in good faith with International
Alliance of Theatrical Stage Employees and Moving
Picture Technicians, Artists and Allied Crafts of the
United States, its Territories and Canada, Local 500,
AFL–CIO, CLC as the exclusive collective-bargaining
representative of the employees in the unit concerning
the use of the Union’s hiring hall, subcontracting unit
work, and the effects of the Respondent’s unlawful con-
duct.
(b) Comply with the Union’s hiring hall provisions, as
set forth in the November 30, 2010, to November 30,
2013 collective-bargaining agreement.
(c) Offer immediate and full employment to those ap-
plicants who would have been referred to the Respondent
for employment by the Union were it not for the Re-
spondent’s unlawful conduct, and make them whole for
any loss of earnings and other benefits suffered as a re-
sult of the Respondent’s failure to hire them, with inter-
est, in the manner set forth in the remedy section of this
decision.
(d) Compensate the applicants for the adverse tax con-
sequences, if any, of receiving lump-sum backpay
awards, and file a report with the Social Security Admin-
istration allocating the backpay awards to the appropriate
calendar quarters.
(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 rec-
ords 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, post at
its facility in Jensen Beach, Florida copies of the attached
notice marked “Appendix.”5 Copies of the notice, on
forms provided by the Regional Director for Region 12,
after being signed by the Respondent’s authorized repre-
5 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.”
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 cov-
ered by any other material. If the Respondent has gone
out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Re-
spondent at any time since November 10, 2014.
(g) Within 21 days after service by the Region, file
with the Regional Director for Region 12 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.
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.
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 bargain collectively
and in good faith with International Alliance of Theatri-
cal Stage Employees and Moving Picture Technicians,
Artists and Allied Crafts of the United States, its Territo-
ries and Canada, Local 500, AFL–CIO, CLC as the ex-
clusive collective-bargaining representative of our em-
ployees in the following appropriate bargaining unit by
unilaterally failing to utilize the Union’s hiring hall in
accordance with the referral provisions set forth in the
collective-bargaining agreement and by unilaterally sub-
contracting unit work:

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1302
All stewards, heads of department, leads/requests,
stagehand/truck loaders, high end technicians, and
workers employed by us doing all carpentry, electrical,
lighting, properties, wardrobe, projection, audio-visual,
sound, video, curtains, draperies, pipe & drape, plat-
forms, staging, scaffolding and other related work rec-
ognized as traditionally falling within the jurisdiction of
the Union, including the take-in and take-out, handling,
installation, maintenance, repair, assembling and dis-
mantling, the loading and unloading of trucks or vans
of any and all equipment used in connection with any
show, presentation, meeting, banquet, including re-
hearsals, and any television or videotaping, and work-
ers operating the following types of equipment: lasers,
pyrotechnics, electrical generators, booms, forklifts,
high-rise lifts, scissor lifts, follow spots and any other
equipment traditionally coming under the jurisdiction
of the Union.

WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, on request, bargain in good faith with the
Union as the exclusive collective-bargaining representa-
tive of the employees in the unit concerning the use of
the Union’s hiring hall, subcontracting unit work, and the
effects of our unlawful conduct.
WE WILL comply with the Union’s hiring hall provi-
sions, as set forth in the November 30, 2010, to Novem-
ber 30, 2013 collective-bargaining agreement.
WE WILL offer immediate and full employment to
those applicants who would have been referred to us for
employment by the Union were it not for our unlawful
conduct, and WE WILL make them whole for any loss of
earnings and other benefits suffered as a result of our
failure to hire them, with interest.
WE WILL compensate the applicants for the adverse tax
consequences, if any, of receiving lump-sum backpay
awards, and WE WILL file a report with the Social Securi-
ty Administration allocating the backpay awards to the
appropriate calendar quarters.

ISLAND MANAGEMENT PARTNERS, INC.

The Board’s decision can be found at
www.nlrb.gov/case/12-CA-140702 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations
Board, 1015 Half Street, S.E., Washington, D.C. 20570, or
by calling (202) 273-1940.