338 N.L.R.B. 96 (N.L.R.B. 2003)

Just Electric, Inc.

National Labor Relations Board - Board DecisionsJan 24, 2003

338 N.L.R.B. 96 (N.L.R.B. 2003)

1 NOTICE: This opinion is subject to formal revision before publication in the bound 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. Just Electric, Inc. and International Brotherhood of Electrical Workers Local 20. Case 16–CA–21989 January 24, 2003 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND WALSH The General Counsel seeks summary judgment in this case on the ground that the Respondent has failed to file an answer to the complaint. Upon a charge filed by the Union on June 18, 2002, and amended on August 19, 2002,1 the General Counsel issued the complaint on Au- gust 30, against Just Electric, Inc., the Respondent, alleg ing that it has violated Section 8(a)(1) and (3) of the Act. The Respondent failed to file an answer. On October 7, the General Counsel filed a Motion for Summary Judgment with the Board. On October 10, 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 re sponse. The allegations in the motion are therefore un disputed. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Ruling on Motion for Summary Judgment Section 102.20 the Board’s Rules and Regulations pro vides 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 states 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 letter dated September 17, notified the Respondent that unless an answer were received by September 23, a Mo tion for Summary Judgment would be filed. 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 Summary Judgment. On the entire record, the Board makes the following 1 All dates herein refer to 2002 unless otherwise noted. FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a Texas corpora tion, has been engaged in the business of electrical con struction. During the 12-month period preceding issuance of the complaint, the Respondent, in conducting its business operations, purchased and received at its Dallas, Texas facility goods and materials valued in excess of $50,000 from other enterprises, including Consolidated Electrical Distributors, located within the State of Texas, which received these goods and materials directly from points outside the State of Texas. 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, Pat Dillehay has held the posi tion of president and has been a supervisor within the meaning of Section 2(11) of the Act and an agent within the meaning of Section 2(13) of the Act. On about April 10, Pat Dillehay, at the Respondent’s place of business located in Keller, Texas, told an appli cant that he did not know if he could employ him be- cause he was a union electrician. On about April 5, Wade Noble applied for employ ment with the Respondent. On about April 10, the Re spondent refused to hire Wade Noble because he joined and assisted the Union and engaged in concerted activi ties, and to discourage employees from engaging in these activities. 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 rights guaranteed them by Section 7 of the Act, in violation of Section 8(a)(1) of the Act. In addition, by refusing to hire Wade Noble, 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 dis couraging membership in a labor organization, in viola tion of Section 8(a)(3) of the Act. FES, 331 NLRB 9, 12–14 (2000), supplemental decision 333 NLRB No. 8 (2001), enfd. 301 F.3d 83 (3d Cir. 2002). See also Budget Heating & Cooling, Inc., 332 NLRB No. 132 (2000). These unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 338 NLRB No. 96 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 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)(3) and (1) by refusing to hire Wade Noble because of his union activity, we shall order the Respondent to offer him im mediate instatement to the position which he applied or, if that job no longer exists, to a substantially equivalent position, and to make him whole for any loss of earnings and other benefits suffered as a result of the discrimina tion against him. Backpay shall be computed in accor dance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as prescribed in New Horizons for the Re tarded, 283 NLRB 1173 (1987). The Respondent shall also be required to remove from its files any and all ref erences to the unlawful refusal to hire, and to notify No ble in writing that this has been done. ORDER The National Labor Relations Board orders that the Respondent, Just Electric, Inc., Dallas and Keller, Texas, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Telling job applicants that it might not be able to hire them because they are members of the Union. (b) Refusing to hire applicants for employment be- cause of their union activity. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exe rcise 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 Wade Noble instatement to the position to which he ap plied or, if such job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges he would have enjoyed absent the discrimination against him. (b) Make Wade Noble whole for any loss of earnings and other benefits suffered as a result of the discrimina tion against him in the manner set forth in the remedy section of this decision. (c) Within 14 days from the date of this Order, remove from its files any reference to the unlawful refusal to hire Wade Noble, and within 3 days thereafter notify him in writing that this has been done and that the unlawful re fusal to hire him will not be used against him in any way. (d) Within 14 days after service by the Region, post at its facilities in Dallas and Keller, Texas, copies of the attached notice marked “Appendix.”2 Copies of the no tice, on forms provided by the Regional Director for Re gion 16, 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 facili ties 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 April 10, 2002. (e) 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. January 24, 2003 Robert J. Battista, Chairman Wilma B. Liebman, Member Dennis P. Walsh, 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 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 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 ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” JUST ELECTRIC, INC. 3 Chose 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 tell job applicants that we might not be able to hire them because they are members of the Union. WE WILL NOT refuse to hire applicants for employment because of their union activity. 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 Wade Noble instatement to the position to which he applied or, if that job no longer exists, to a sub stantially equivalent position, without prejudice to his seniority or any other rights or privileges he would have enjoyed absent the discrimination against him. WE WILL make Wade Noble whole for any loss of earn ings and other benefits suffered as a result of the dis crimination against him. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to our unlaw ful refusal to hire Wade Noble, and WE WILL, within 3 days thereafter, notify him in writing that this has been done and that the unlawful refusal to hire him will not be used against him in any way. JUST ELECTRIC, INC.