Lintrac Services, Inc.

National Labor Relations Board - Board Decisions

Apr 17, 2013

359 N.L.R.B. 771 (N.L.R.B. 2013)

LINTRAC SERVICES 771

359 NLRB No. 94
Lintrac Services, Inc. and International Brotherhood
of Teamsters Local 710. Case 13–CA–091818
April 17, 2013
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS GRIFFIN
AND BLOCK
The Acting General Counsel seeks a default judgment
in this case on the ground that the Respondent has failed
to file an answer to the complaint. Upon a charge, a first
amended charge, and a second amended charge filed by
International Brotherhood of Teamsters Local 710 (the
Union) on October 22, 2012, and January 18 and 31,
2013, respectively, the Acting General Counsel issued a
complaint and notice of hearing on January 31, 2013,
against Lintrac Services, Inc. (the Respondent), alleging
that the Respondent violated Section 8(a)(5), (3), and (1)
of the Act. The Respondent failed to file an answer.
On February 22, 2013, the Acting General Counsel
filed a Motion for Default Judgment with the Board.
Thereafter, on February 26, 2013, the Board issued an
order transferring the proceeding to the Board and a No-
tice to Show Cause why the motion should not be grant-
ed. The Respondent filed no response. The allegations
in the motion are therefore undisputed.
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 February 14,
2013, the Board may find, pursuant to a motion for de-
fault judgment, that the allegations in the complaint are
true. Further, the undisputed allegations in the Acting
General Counsel’s motion disclose that the Region, by
letter and facsimile transmission dated February 15,
2013, notified the Respondent that unless an answer were
received by the extended due date of February 21, 2013,
a motion for default judgment would be filed. Neverthe-
less, the Respondent failed to file an answer.
1

In the absence of good cause being shown for the fail-
ure to file an answer, we grant the Acting General Coun-
sel’s Motion for Default Judgment.

1 The Acting General Counsel’s Motion for Default Judgment and
attached exhibits indicate that the complaint was served on an officer of
the Respondent, Thomas Blackwell, by certified mail and was returned
to sender marked “refused.” It is well settled that a respondent’s failure
or refusal to accept certified mail or to provide for receiving appropri-
ate service cannot serve to defeat the purposes of the Act. See, e.g.,
I.C.E. Electric, Inc., 339 NLRB 247, 247 fn. 2 (2003), and cases cited
there.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a Georgia cor-
poration with an office and place of business in North-
lake, Illinois, has been engaging in the maintenance and
repair of tractor-trailer chaises and boxcars. During the
past calendar year, a representative period, the Respond-
ent purchased and received goods and materials at its
Northlake, Illinois facility in excess of $50,000 directly
from points located outside of Illinois. 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 mean-
ing of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times, the following individuals held
the positions set forth opposite their respective names
and have been supervisors of the Respondent within the
meaning of Section 2(11) of the Act and agents of the
Respondent within the meaning of Section 2(13) of the
Act:

Thomas Blackwell Chief Financial Officer
Tim Burnett Supervisor and/or Manager
Jason Tirado Supervisor and/or Manager

The following employees of the Respondent (the unit)
constitute a unit appropriate for purposes of collective
bargaining within the meaning of Section 9(b) of the Act:

All full-time and regular part-time mechanics em-
ployed by the Employer at its worksite currently locat-
ed at 301 W. Lake St. Northlake, IL 60164; excluding
all office clerical employees, professional employees,
managerial employees, guards and supervisors as de-
fined in the Act.

From about August 14, to about August 21, 2012, a
majority of the unit designated the Union as their exclu-
sive collective-bargaining representative.
At all times since August 21, 2012, the Union has
maintained majority status as the collective-bargaining
representative of the unit.
Based on the acts and conduct alleged in paragraphs
13, 14, and 15 below, at all times since September 24,
2012, based on Section 9(a) of the Act, the Union has
been the exclusive collective-bargaining representative of
the unit.
The Respondent engaged in the following conduct:
772 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1. About September 24, 2012, the Respondent, by Ja-
son Tirado, interrogated employees regarding their
knowledge of the Union.
2. About September 25, 2012, the Respondent, by Tim
Burnett, interrogated employees regarding their
knowledge of the Union and threatened to interfere with
employees’ union activities due to their support of the
Union and their union activities.
3. About September 26, 2012, the Respondent, by Tim
Burnett:

(a) at a meeting for employees and at other times at the
Respondent’s location, solicited grievances from em-
ployees due to their support of the Union and their un-
ion activities and made a veiled threat of replacing em-
ployees due to their support of the union and their un-
ion activities.
(b) in the Respondent’s yard, solicited grievances from
employees due to their support of the Union and their
union activities.
(c) interrogated employees about union activities when
it asked employees to disclose to the Respondent other
employees’ support for and activities on behalf of the
Union and made an implied offer of job promotion to
employees.

4. About November 2012, the Respondent, by Jason
Tirado, solicited signatures for an antiunion petition by
telling employees to sign the petition; and interrogated
employees regarding whether they signed the antiunion
petition.
5. About December 17, 2012, the Respondent, by Ja-
son Tirado, threatened to terminate employees due to
their support of the Union and their union activities.
6. About September 24, 2012, the Respondent, by Ja-
son Tirado, created a new written attendance policy and
required employees to sign acknowledgement of the pol-
icy.
7. About September 28, 2012, the Respondent, by Ja-
son Tirado and Thomas Blackwell, changed job require-
ments regarding driver’s licenses.
8. The Respondent engaged in the conduct described
in paragraphs 6 and 7 because employees of the Re-
spondent assisted the Union and engaged in concerted
activities, and to discourage employees from engaging in
these activities.
9. About September 26, 2012, the Respondent, by Tim
Burnett, disciplined employee Demetrious Shaw.
10. About September 26, 2012, the Respondent, by
Tim Burnett, terminated employee Nathanael Hernandez.
11. About October 11, 2012, the Respondent, by Jason
Tirado and Thomas Blackwell, terminated employee
Demetrious Shaw.
12. The Respondent engaged in the conduct described
in paragraphs 9, 10, and 11 because the named employ-
ees of the Respondent assisted the Union and engaged in
concerted activities, and to discourage employees from
engaging in these activities.
13. About September 24, 2012, the Union, by Bill
Messina and Matthew Flynn, in person, requested that
the Respondent, through Jason Tirado, voluntarily recog-
nize the Union as the collective-bargaining representative
of the unit.
14. The serious and substantial unfair labor practice
conduct described in paragraphs 1 through 12 is such that
there is only a slight possibility of traditional remedies
erasing their effects and conducting a fair election.
Therefore, on balance, the employees’ sentiments regard-
ing representation, having been expressed through au-
thorization cards, would be protected better by issuance
of a bargaining order.
15. The allegations described in paragraph 14 request-
ing the issuance of a bargaining order are supported by,
among other things:

(a) Thomas Blackwell, Tim Burnett, and Jason Tirado
are high ranking supervisors responsible for the dis-
criminatory conduct described in paragraphs 1 through
12;
(b) The conduct described in paragraphs 1 through 12
has not been retracted;
(c) There are approximately 18 employees in the unit
described above;
(d) The conduct described above in paragraphs 1
through 12 was immediately directed at approximately
18 employees;
Eighteen employees learned or were likely to learn of
the conduct described in paragraphs 1 through 12.
The conduct described in paragraphs 1, 2, 3(a) through
(c), and 6 through 12 followed immediately on the heels
of the Respondent’s knowledge of the Union’s campaign.
The employees described in paragraphs 9 through 12
were leading organizers for the Union.
16. Since about September 24, 2012, the Respondent
has failed and refused to recognize and bargain with the
Union as the exclusive collective-bargaining representa-
tive of the unit.
CONCLUSIONS OF LAW
1. By the conduct described in paragraphs 1 through
5, the Respondent has been interfering with, restraining,
LINTRAC SERVICES 773

and coercing employees in the exercise of the rights
guaranteed in Section 7 of the Act in violation of Section
8(a)(1) of the Act.
2. By the conduct described in paragraphs 6 through
12, the Respondent has been discriminating in regard to
the hire or tenure or terms and conditions of employment
of its employees, thereby discouraging membership in a
labor organization in violation of Section 8(a)(3) and (1)
of the Act.
3. By the conduct described in paragraph 16, the Re-
spondent has been failing and refusing to bargain collec-
tively and in good faith with the exclusive collective-
bargaining representative of its employees within the
meaning of Section 8(d) of the Act, in violation of Sec-
tion 8(a)(5) and (1) of the Act.
4. The Respondent’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. Specifically, having
found that the Respondent violated Section 8(a)(5) and
(1) of the Act by failing and refusing, since about Sep-
tember 24, 2012, to recognize and bargain with the Un-
ion as the exclusive collective-bargaining representative
of the unit employees, we shall order the Respondent, on
request, to bargain with the Union as the exclusive col-
lective-bargaining representative of the unit employees
concerning terms and conditions of employment and, if
an understanding is reached, to embody the understand-
ing in a signed agreement. Accord: Stevens Creek
Chrysler Jeep Dodge, 357 NLRB 633 (2011) (finding
Gissel bargaining order appropriate where possibility of
fair election was slight due to respondent’s hallmark vio-
lations), enfd. sub nom. Mathew Enterprise v. NLRB, _
Fed. Appx _ , 2012 WL 6599551 (D.C. Cir. Dec. 14,
2012); MZ Movers, Inc., 330 NLRB 309, 310–312
(1999); see generally NLRB v. Gissel Packing Co., 395
U.S. 575 (1969).
In addition, having found that the Respondent violated
Section 8(a)(3) and (1) of the Act by creating a new writ-
ten attendance policy, by requiring employees to sign an
acknowledgement of the policy, and by changing job
requirements regarding driver’s licenses, we shall order
the Respondent to rescind these discriminatory actions
and notify its employees in writing that the new attend-
ance policy and new licensing requirements are no longer
in force.
Having also found that the Respondent violated Sec-
tion 8(a)(3) and (1) of the Act by disciplining and termi-
nating Demetrious Shaw, and by terminating Nathanael
Hernandez, we shall order the Respondent to rescind
Shaw’s discriminatory discipline and to offer Shaw and
Hernandez full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any oth-
er rights or privileges previously enjoyed. Further, we
shall order the Respondent to make whole Shaw and
Hernandez for any loss of earnings or other benefits suf-
fered as a result of the Respondent’s unlawful actions
against them. Backpay shall be computed in accordance
with F. W. Woolworth Co., 90 NLRB 289 (1950), with
interest at the rate prescribed in New Horizons for the
Retarded, 283 NLRB 1173 (1987), compounded daily as
prescribed in Kentucky River Medical Center, 356 NLRB
6 (2010).
Additionally, in accordance with our recent decision in
Latino Express, Inc., 359 NLRB 518 (2012), we shall
order the Respondent to compensate Shaw and Hernan-
dez for the adverse tax consequences, if any, of receiving
a lump-sum backpay award and to file a report with the
Social Security Administration allocating the backpay
award to the appropriate calendar quarters for Shaw and
Hernandez.
Finally, the Respondent shall also be required to re-
move from its files all references to the unlawful disci-
pline of Shaw and the unlawful terminations of Shaw and
Hernandez. The Respondent shall notify Shaw and Her-
nandez in writing that this has been done and that the
unlawful references will not be used against them in any
way.
ORDER
The National Labor Relations Board orders that the
Respondent, Lintrac Services, Inc., Northlake, Illinois,
and Conley, Georgia, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with
International Brotherhood of Teamsters Local 710 (the
Union) as the exclusive collective-bargaining representa-
tive of the employees in the unit.
(b) Interrogating employees about their union activi-
ties and their knowledge of the Union.
(c) Threatening to interfere with employees’ union ac-
tivities.
(d) Soliciting grievances from employees and implied-
ly promising to remedy those grievances in order to dis-
courage employees’ support of the Union and their union
activities.
(e) Impliedly threatening to replace employees due to
their support of the Union and their union activities.
774 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

(f) Impliedly offering job promotions to employees in
order to discourage employees’ support of the Union and
their union activities.
(g) Soliciting employees’ signatures for an antiunion
petition.
(h) Interrogating employees regarding whether they
signed the antiunion petition.
(i) Threatening to terminate employees due to their
support of the Union and their union activities.
(j) Creating a new written attendance policy and re-
quiring employees to sign acknowledgement of the poli-
cy, because employees assisted the Union and engaged in
concerted activities, and to discourage employees from
engaging in these activities.
(k) Changing job requirements regarding driver’s li-
censes because employees assisted the Union and en-
gaged in concerted activities, and to discourage employ-
ees from engaging in these activities.
(l) Disciplining employees because they assisted the
Union and engaged in concerted activities, and to dis-
courage employees from engaging in these activities.
(m) Terminating employees because they assisted the
Union and engaged in concerted activities, and to dis-
courage employees from engaging in these activities.
(n) 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 with the Union as the exclu-
sive collective-bargaining representative of the employ-
ees in the following appropriate unit concerning terms
and conditions of employment and, if an understanding is
reached, embody the understanding in a signed agree-
ment:

All full-time and regular part-time mechanics em-
ployed by the Employer at its worksite currently locat-
ed at 301 W. Lake St. Northlake, IL 60164; excluding
all office clerical employees, professional employees,
managerial employees, guards and supervisors as de-
fined in the Act.

(b) Rescind the new attendance policy and notify its
employees in writing that the policy is no longer in force.
(c) Rescind the change in job requirements regarding
driver’s licenses and notify its employees in writing that
those requirements are no longer in force.
(d) Rescind the discipline of Demetrious Shaw
(e) Within 14 days from the date of this Order, offer
Nathanael Hernandez and Demetrious Shaw full rein-
statement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without prej-
udice to their seniority or any other rights or privileges
previously enjoyed.
(f) Make whole Nathanael Hernandez and Demetrious
Shaw for any loss of earnings and other benefits suffered
as a result of the discrimination against them, in the
manner section forth in the remedy section of this deci-
sion.
(g) Compensate Nathanael Hernandez and Demetrious
Shaw for the adverse tax consequences, if any, of receiv-
ing lump-sum backpay awards, and file a report with the
Social Security Administration allocating the backpay
awards to the appropriate calendar quarters for Hernan-
dez and Shaw.
(h) Within 14 days from the date of this Order, re-
move from its files any references to the unlawful termi-
nations of Nathanael Hernandez and Demetrious Shaw,
and the unlawful discipline of Demetrious Shaw, and
within 3 days thereafter notify each of them in writing
that this has been done and that the unlawful conduct will
not be used against them in any way.
(i) 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.
(j) Within 14 days after service by the Region, post at
its facility in Northlake, Illinois, copies of the attached
notice marked “Appendix.”
2
Copies of the notice, on
forms provided by the Regional Director for Region 13,
after being signed by the Respondent’s authorized repre-
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

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.”
LINTRAC SERVICES 775

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 September 24, 2012.
(k) 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
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 recognize and bargain
with International Brotherhood of Teamsters Local 710
(the Union) as the exclusive collective-bargaining repre-
sentative of the employees in the unit.
WE WILL NOT interrogate employees about their union
activities and their knowledge of the Union.
WE WILL NOT threaten to interfere with employees’ un-
ion activities.
WE WILL NOT solicit grievances from employees and
impliedly promise to remedy those grievances in order to
discourage employees’ support of the Union and their
union activities.
WE WILL NOT impliedly threaten to replace employees
due to their support of the Union and their union activi-
ties.
WE WILL NOT impliedly offer job promotions to em-
ployees in order to discourage employees’ support of the
Union and their union activities.
WE WILL NOT solicit employees’ signatures for an an-
tiunion petition.
WE WILL NOT interrogate employees regarding whether
they signed the antiunion petition.
WE WILL NOT threaten to terminate employees due to
their support of the Union and their union activities.
WE WILL NOT create a new written attendance policy
and require employees to sign acknowledgement of the
policy because employees assisted the Union and en-
gaged in concerted activities, and to discourage employ-
ees from engaging in these activities.
WE WILL NOT change job requirements regarding driv-
er’s licenses because employees assisted the Union and
engaged in concerted activities, and to discourage em-
ployees from engaging in these activities.
WE WILL NOT discipline employees because they as-
sisted the Union and engaged in concerted activities, and
to discourage employees from engaging in these activi-
ties.
WE WILL NOT terminate employees because they as-
sisted the Union and engaged in concerted activities, and
to discourage employees from engaging in these activi-
ties.
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 with the Union as the
exclusive collective-bargaining representative of the em-
ployees in the following appropriate unit concerning
terms and conditions of employment and, if an under-
standing is reached, embody the understanding in a
signed agreement:

All full-time and regular part-time mechanics em-
ployed by us at our worksite currently located at 301
W. Lake St. Northlake, IL 60164; excluding all office
clerical employees, professional employees, managerial
employees, guards and supervisors as defined in the
Act.

WE WILL rescind the new attendance policy and notify
you in writing that the policy is no longer in force.
WE WILL rescind the change in job requirements re-
garding driver’s licenses and notify you in writing that
those requirements are no longer in force.
WE WILL rescind the discipline of Demetrious Shaw.
WE WILL, within 14 days from the date of the Board’s
Order, offer Nathanael Hernandez and Demetrious Shaw
full reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights or priv-
ileges previously enjoyed.
WE WILL make whole Nathanael Hernandez and De-
metrious Shaw for any loss of earnings and other benefits
suffered as a result of the discrimination against them,
less any net interim earnings, plus interest.
WE WILL compensate Nathanael Hernandez and De-
metrious Shaw for the adverse tax consequences, if any,
of receiving lump-sum backpay awards, and WE WILL file
776 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

a report with the Social Security Administration allocat-
ing the backpay awards to the appropriate calendar quar-
ters for Hernandez and Shaw.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any references to the un-
lawful terminations of Nathanael Hernandez and Deme-
trious Shaw, and the unlawful discipline of Demetrious
Shaw, and WE WILL, within 3 days thereafter, notify each
of them in writing that this has been done and that our
unlawful conduct will not be used against them in any
way.
LINTRAC SERVICES, INC.