Jet Electric Co.

National Labor Relations Board - Board Decisions

Aug 10, 2001

334 N.L.R.B. 1059 (N.L.R.B. 2001)

JET ELECTRIC CO. 1059
Jet Electric Company, Inc. and Local Union 342 of
the International Brotherhood of Electrical
Workers, AFL–CIO. Case 11–CA–18395
August 10, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN
AND TRUESDALE
Upon a charge filed by the Union on July 2, 1999, an
amended charge filed on September 30, 1999, and a sec-
ond amended charge filed on October 26, 1999, the Gen-
eral Counsel of the National Labor Relations Board is-
sued a complaint on October 29, 1999, against Jet Elec-
tric Company, Inc., the Respondent, alleging that it vio-
lated Section 8(a)(3) and (1) of the National Labor Rela-
tions Act. The General Counsel filed an amended com-
plaint against the Respondent on February 26, 2001.
Copies of the charges, complaint, and amended com-
plaint were properly served on the Respondent. By letter
dated March 20, 2001, and received by the Region on
March 22, the Respondent’s president denied all com-
plaints directed at the Respondent.
On April 17, 2001, the Acting General Counsel filed a
Motion for Summary Judgment with the Board. On
April 20, 2001, 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 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
a letter dated March 14, 2001, and by a telephone call on
March 21, 2001, notified the Respondent that unless an
answer was received by March 26, 2001, a Motion for
Summary Judgment would be filed.
On March 22, 2001, the Region received a letter dated
March 20, 2001, from Respondent’s president in the
mail. In the letter, the Respondent’s president asserted,
“I deny all complaints directed at me, James A. Jackson,
or my company Jet Electric Co., Inc.”
We find that the Respondent’s pro se letter, dated
March 20, 2001, does not constitute a proper answer to
the complaint allegations under Section 102.20 of the
Board’s Rules and Regulations because it fails to address
any of the factual or legal allegations of the complaint,
and therefore is legally insufficient under the Board’s
Rules. See Eckert Fire Protection Co., 329 NLRB 920
(1999) (pro se letter from company president denying
“all charges referenced” in complaint insufficient answer
under Board Rules); American Gem Sprinkler Co., 316
NLRB 102, 103 (1995) (respondent’s apparently pro se
answer stating that it does not “agree with the Union’s
position” too vague to constitute an acceptable answer).
In the absence of good cause being shown for the fail-
ure to file a sufficient answer, we grant the General
Counsel’s Motion for Summary Judgment insofar as the
amended complaint alleges that the Respondent has
committed violations of Section 8(a)(1) and (3) of the
Act.1 One of those alleged violations, however, is an
unlawful refusal to hire eight discriminatee applicants on
various dates in 1999. Although we agree that the undis-
puted amended complaint allegations are sufficient to
prove a refusal-to-hire violation under the standard set
forth in FES, 331 NLRB 9 (2000), the allegations are
insufficient to enable the Board to determine the appro-
priate remedy.
In this regard, the Board held in FES that “in cases in-
volving numerous applicants, the General Counsel need
only show that one applicant was discriminated against
to establish a refusal-to-hire violation warranting a cease-
and-desist order.” Id. at 14 In order to justify an af-
firmative backpay and reinstatement order, the General
Counsel must further show the number of openings that
were available. “Proof of the availability of openings
cannot be deferred to the compliance stage of the pro-
ceeding.” Id. “Where the number of applicants exceeds
the number of available jobs, the compliance proceeding
may be used to determine which of the applicants would
have been hired for the openings.” Id.
The amended complaint here alleges that the Respon-
dent “filled job openings” at all material times and that it
refused to hire the eight named discriminatee applicants
because they engaged in concerted protected union ac-
tivities. We find these undisputed allegations sufficient
under FES to establish a refusal-to-hire violation war-
ranting a cease-and-desist order. The complaint does not
otherwise specify how many openings the Respondent
had available. Consistent with FES, the General Counsel
bears the burden of proving the availability of openings

1 We further emphasize that the Respondent failed to file a response
to Notice to Show Cause why the Motion for Summary Judgment
should not be granted Motion for Summary Judgment.
334 NLRB No. 133
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1060
at the initial unfair labor practice stage of the proceed-
ings. We shall therefore hold in abeyance a final deter-
mination of the appropriate remedy for the Respondent’s
refusal-to-hire or consider for hire violations pending a
remand of this case for a hearing before an administrative
law judge on the limited issue of the number of openings
that were available to the discriminatee applicants.2
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a North Carolina
corporation with jobsites located in Winston-Salem,
North Carolina, has been engaged in electrical contract-
ing. During the 12 months preceding issuance of the
complaint, the Respondent, in conducting its business
operations, purchased and received at its Winston-Salem
jobsites goods and materials valued in excess of $50,000
directly from points outside the State of North Carolina.
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, Local 342 of the Inter-
national Brotherhood of Electrical Workers, AFL–CIO,
is a labor organization within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Since on or about January 2, 1999,3 the Respondent,
through its president, agents, and supervisors engaged in
the following conduct: threatened not to hire employees
because of their affiliation with the Union (President
James A. Jackson on about February 12, 15, and 19, June
9 and 17; Foreman Tim Gilleland, on about March 16);
threatened to interrogate employees regarding their union
affiliation (President Jackson on about June 9); advised
employees and applicants that union-affiliated employees
would not be hired .(President Jackson on about June 9;
Superintendent Greg Hill on about February 16; and
Foreman Gilleland on March 16); threatened to discharge
employees for their affiliation with the Union (President
Jackson on about May 5 and June 9; an unidentified

2 Whether, or the extent to which, an affirmative remedy for the re-
fusal-to-consider violations is warranted will depend on whether the
evidence shows that openings were available warranting the more com-
prehensive remedy of an instatement order for the refusal-to-hire viola-
tion. Budget Heating & Cooling, 332 NLRB fn. 3 (2000).
Nothing contained in this decision requires a hearing if, in the event
of an amendment to the complaint, the Respondent fails to answer,
thereby admitting evidence that would permit the Board to resolve the
remedial instatement and backpay issue. In such circumstances, the
General Counsel may renew the Motion for Summary Judgment with
respect to this specific affirmative remedy. See Center State Beef and
Veal Co., 330 NLRB 41 (1999).
3 All subsequent dates are in 1999, unless otherwise stated.
foreman on about May 5); and interrogated employees
regarding their union affiliation and membership (Super-
intendent Hill on about February 16; President Jackson
on about February 19, March 10 and 15, May 5, and June
17; Foreman Tony Heath on about June 17; Foreman
Gilleland on about March 16; an unidentified foreman on
about May 5). By each of these acts, the Respondent
engaged in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
On about February 23, the Respondent changed its hir-
ing practices and policies in order to deny employment to
union-affiliated employees. In addition, on about the
dates indicated, the Respondent refused to consider for
hire, and failed and refused to hire, the following appli-
cants: Rodney Booe (February 17); Stanley Grace (Feb-
ruary 19); Jerry Loftis (February 23); Roger Stanley
(March 10); Douglas Summers (March 15); Allen Craver
(March 16); Gary Maurice (April 28); and Percival Mil-
lington (May 5). At all material times, the Respondent
was filling job openings at its Winston-Salem, North
Carolina jobsites. By each of these acts, the Respondent
engaged in unfair labor practices within the meaning of
Section 8(a)(3) and (1) of the Act.
CONCLUSIONS OF LAW
By the acts and conduct described above, the Respon-
dent has been interfering with, restraining, and coercing
employees in the exercise of rights guaranteed them by
Section 7 of the Act, in violation of Section 8(a)(1) of the
Act. In addition, by refusing to consider for hire, and
failing and refusing to hire, the above-named applicants,
and by changing its hiring practices, the Respondent has
been discriminating in regard to the hire or tenure or
terms and conditions of employment of its employees
and applicants for employment, thereby discouraging
membership in a labor organization, violating Section
8(a)(3) and (1) of the Act.
By the conduct described above, the Respondent has
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 has violated Section 8(a)(3)
and (1) by refusing to hire or to consider for hire the in-
dividuals named above, we shall order the Respondent to
expunge from its files any and all references to the
unlawful refusal to hire or consider for hire and to notify
JET ELECTRIC CO. 1061
the discriminatees in writing that this has been done.4 In
addition, having found that the Respondent violated Sec-
tion 8(a)(3) and (1) by changing its hiring policies, we
shall order the Respondent to rescind these changes.
ORDER
The National Labor Relations Board orders that the
Respondent, Jet Electric Company, Inc., Winston-Salem,
North Carolina, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Threatening not to hire employees because of their
affiliation with a union.
(b) Threatening to interrogate employees regarding
their union affiliation.
(c) Advising employees and applicants that union-
affiliated employees would not be hired.
(d) Threatening to discharge employees for their af-
filiation with a union.
(e) Interrogating employees regarding their union af-
filiation and membership.
(f) Refusing to consider for hire or to hire applicants
because of their affiliation with a union.
(g) Changing its hiring practices and policies in order
to deny employment to union-affiliated applicants.
(h) 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) Rescind the changes in hiring practices and poli-
cies designed to deny employment to union-affiliated
applicants.
(b) Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful refusals
to hire or consider for hire Rodney Booe, Stanley Grace,
Jerry Loftis, Roger Stanley, Douglas Summers, Allen
Craver, Gary Maurice, and Percival Millington, and
within 3 days thereafter notify the applicants in writing
that this has been done and that the unlawful refusals to
hire or consider for hire will not be used against them in
any way.
(c) Within 14 days after service by the Region, post at
its facilities in Winston-Salem, North Carolina, copies of
the attached notice marked “Appendix.”5 Copies of the

4 As previously stated, we shall hold in abeyance the determination
of any further appropriate affirmative remedy for the Respondent’s
refusal-to-hire or consider violations.
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.”
notice, on forms provided by the Regional Director for
Region 11, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Respon-
dent and maintained for 60 consecutive days in con-
spicuous 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 facilities involved in these proceedings, the
Respondent 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 January 2, 1999.
(d) 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.
IT IS FURTHER ORDERED that the issue of how
many job openings were available at times relevant to the
discriminatees’ applications for work is remanded to the
Regional Director for appropriate action consistent with
this Decision and Order.

CHAIRMAN HURTGEN, dissenting.
I would deny the General Counsel’s Motion for Sum-
mary Judgment. The Respondent (unrepresented) ac-
knowledged receipt of the amended complaint on March
21, 2000, and—within the time provided by the Re-
gion—responded to the amended complaint on March
22. In the March 22 response, the Respondent stated that
“I deny all complaints directed at me, James A. Jackson,
or my company Jet Electric, Inc.” In my view, this con-
stitutes a sufficient denial of the allegations of the com-
plaint. As I previously concluded in Eckert Fire Protec-
tion Co., 329 NLRB 920, 923–924 (1999) (dissenting
opinion), summary judgment should be denied where, as
here, a respondent’s response to the complaint “clearly
puts the General Counsel’s allegations in issue” and con-
stitutes “a sufficient denial to put the General Counsel to
his proof at a hearing.” See also Triple H Fire Protec-
tion, 326 NLRB 463, 466 (1998) (dissenting opinion).
I reject my colleagues’ claim that the March 22 re-
sponse is legally insufficient because it assertedly does
not address each of the factual or legal allegations of the
complaint. It is not uncommon for a represented respon-
dent to simply say “denied” as to each allegation of a
complaint. Such denials are routinely accepted. Surely,
there is no substantive difference between this and the
denial of “all” of the allegations of a complaint. Particu-
larly in a case involving a pro se Respondent, I would not
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1062
elevate form over substance and thereby deny the Re-
spondent its right to contest the allegations.
In these circumstances I would deny the Motion for
Summary Judgment.
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 the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights:
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT threaten not to hire employees because
of their affiliation with a union.
WE WILL NOT threaten to interrogate our employees
regarding their union affiliation.
WE WILL NOT advise our employees or applicants
that union-affiliated employees will be not hired.
WE WILL NOT Threaten to discharge our employees
for their affiliation with a union.
WE WILL NOT interrogate our employees regarding
their union affiliation and membership.
WE WILL NOT refuse to consider for hire, or refuse to
hire, applicants because of their affiliation with a union.
WE WILL NOT change our hiring practices or policies
to deny employment to union-affiliated applicants.
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 rescind the changes in our hiring practices
or policies designed to deny employment to union-
affiliated applicants.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful refusals to hire or consider for hire applicants Rodney
Booe, Stanley Grace, Jerry Loftis, Roger Stanley, Doug-
las Summers, Allen Craver, Gary Maurice, and Percival
Millington, and WE WILL within 3 days thereafter no-
tify the applicants in writing that this has been done and
that the unlawful refusals to hire or consider for hire will
not be used against them in any way.

JET ELECTRIC COMPANY, INC.