Just Electric, Inc.

National Labor Relations Board - Board Decisions

Jan 28, 2003

338 N.L.R.B. 771 (N.L.R.B. 2003)

JUST ELECTRIC, INC. 771
Just Electric, Inc. and International Brotherhood of
Electrical Workers Local 20. Case 16–CA–
22137
January 28, 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 August 23, 2002,1 the General Counsel issued
the complaint on October 16, against Just Electric, Inc.,
the Respondent, alleging that it has violated Section
8(a)(3) and (1) of the Act. The Respondent failed to file
an answer.
On November 19, the General Counsel filed a Motion
for Summary Judgment with the Board. On November
22, 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 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. 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 October 31, notified the Respondent that
unless an answer was received by November 7, a Motion
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 insofar as the com-
plaint alleges that the Respondent violated Section
8(a)(3) and (1) of the Act by refusing to consider or hire
three job applicants. Specifically, the complaint alleges
that “[o]n about March 26, Earl White, Rusty Stricklan,
and Lance Miller applied for employment with the Re-
spondent,” and “[s]ince that date, Respondent has re-
fused to consider or hire Earl White, Rusty Stricklan, and
Lance Miller . . . because of [their] Union activities and

1 All dates herein refer to 2002 unless otherwise noted.
sympathies and to discourage employees from engaging
in these activities.” We agree that these undisputed alle-
gations are sufficient to establish violations of Section
8(a)(3) and (1) under the standards set forth in FES, 331
NLRB 9, 12–16 (2000), supp. decision 333 NLRB 66
(2001), enfd. 301 F.3d 83 (3d Cir. 2002). See Jet Elec-
tric Co., 334 NLRB 1059 (2001), supp. decision 338
NLRB 649 (2002); see also Budget Heating & Cooling,
332 NLRB No. 132 (2000) (not published in Board vol-
umes).
Under the FES standards, however, the complaint alle-
gations are insufficient to enable us to determine the ap-
propriate remedy. In this regard, the Board held in FES
that in cases involving more than one applicant, the Gen-
eral Counsel, in order to justify an affirmative remedy of
instatement and backpay, must show at the unfair labor
practice stage of the proceeding the number of openings
that were available. 331 NLRB at 14. See also Jet Elec-
tric Co., supra.
The complaint alleges that the Respondent refused to
consider or hire the discriminatees, but does not allege
how many openings were available. Because the General
Counsel bears the burden of proving that there were a
sufficient number of openings at the initial unfair labor
practice stage of the proceeding, the complaint’s allega-
tions do not establish that a backpay and instatement
remedy is warranted. Jet Electric Co., supra. We shall
therefore hold in abeyance a final determination of the
appropriate remedy,2 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 discriminatees.3
On the entire record, the Board makes the following
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
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 enough openings were available to justify the more
comprehensive remedy of instatement and backpay for the refusal to
hire violations. Jet Electric Co., supra at 1059 fn. 2; Budget Heating &
Cooling, supra at 132 fn. 3.
3 A hearing will not be required if, after the General Counsel amends
the complaint, the Respondent fails to answer, thereby admitting evi-
dence 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 Jet Electric Co., supra at 1059 fn. 2.
338 NLRB No. 95
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 772
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 has
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 position
of president and has been a supervisor within the mean-
ing of Section 2(11) of the Act and an agent within the
meaning of Section 2(13) of the Act.
On about March 26, Earl White, Rusty Stricklan, and
Lance Miller applied for employment with the Respon-
dent.
Since that date, the Respondent has refused to consider
or hire Earl White, Rusty Stricklan, and Lance Miller
because of their union activities and sympathies and to
discourage employees from engaging in these activities.
CONCLUSION OF LAW
By refusing to consider for hire or to hire Earl White,
Rusty Stricklan, and Lance Miller, 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. These 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 violated Section 8(a)(3) and
(1) by refusing to hire or consider for hire Earl White,
Rusty Stricklan, and Lance Miller because of their union
activity, 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 them in writing
that this has been done.4

4 As previously stated, we shall hold in abeyance the determination
of any further appropriate affirmative remedy.
ORDER
The National Labor Relations Board orders that the
Respondent, Just Electric, Inc., Dallas, Texas, its offi-
cers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to consider for hire or to hire applicants
for employment because of their union activity.
(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) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful refusals to
hire or consider for hire Earl White, Rusty Stricklan, and
Lance Miller, and within 3 days thereafter notify them in
writing that this has been done and that the unlawful re-
fusals to hire or consider for hire will not be used against
them in any way.
(b) Within 14 days after service by the Region, post at
its facilities in Dallas, Texas, copies of the attached no-
tice marked “Appendix.”5 Copies of the notice, on forms
provided by the Regional Director for Region 16, after
being signed by the Respondent’s authorized representa-
tive, 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 Respon-
dent to ensure that the notices 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 cur-
rent employees and former employees employed by the
Respondent at any time since March 26, 2002.
(c) 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 with the Respondent at times
relevant to Earl White’s, Rusty Stricklan’s, and Lance
Miller’s applications for work is remanded to the Re-
gional Director for appropriate action consistent with this
Decision and Order.
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.”
JUST ELECTRIC, INC. 773
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 refuse to consider for hire or to hire ap-
plicants 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, remove from our files any reference to our unlaw-
ful refusals to hire or consider for hire Earl White, Rusty
Stricklan, and Lance Miller, and WE WILL, within 3 days
thereafter, notify them 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.
JUST ELECTRIC, INC.