Pannex Painting Co.

National Labor Relations Board - Board Decisions

Oct 29, 2004

343 N.L.R.B. 63 (N.L.R.B. 2004)

343 NLRB No. 63
Pannex Painting Company, Inc. and Painters District
Council No. 14 of the International Union of
Painters and Allied Trades (of Chicago, Cook,
Lake, Will and Grundy Counties, Illinois). Case
13–CA–41322
October 29, 2004
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND WALSH
The General Counsel seeks a default judgment in this
case on the ground that the Respondent has failed to file an
answer to the reissued complaint. Upon a charge and first
amended charge filed by the Union on September 15 and
November 26, 2003, respectively, the General Counsel
issued the original complaint on January 27, 2004, against
Pannex Painting Company, Inc., the Respondent, alleging
that it had violated Section 8(a)(1) and (3) of the Act.
Subsequently, on May 19, 2004, the Respondent and
the Charging Party Union entered into an informal set-
tlement agreement, which was approved by the Regional
Director on May 24, 2004. The settlement agreement
required the Respondent to, among other things, (1) pay
$2000 in backpay to employee Jesus Perez and (2) post a
notice to employees regarding the complaint allegations.
The settlement agreement also provided that
Approval of this Agreement by the Regional Director
shall constitute withdrawal of any Complaint(s) and
Notice of Hearing heretofore issued in this case, as well
as any answer(s) filed in response.
On August 17, 2004, the Regional Director set aside
the settlement agreement, withdrew his approval of the
agreement, and issued a reissued complaint and notice of
hearing on the ground that the Respondent had failed to
fully comply with the terms of the settlement agreement,
including by failing to pay $2000 in backpay to em-
ployee Perez.1
The reissued complaint provided that, pursuant to Sec-
tions 102.20 and 102.21 of the Board’s Rules and Regu-
lations, the Respondent was required to file an answer to
the reissued complaint within 14 days from service of it.
By letter dated August 24, 2004, counsel for the General
Counsel advised the Respondent that unless it filed an

1 The reissued complaint and notice of hearing was sent to the Re-
spondent and its last legal counsel of record by certified mail. The
envelope sent to the Respondent containing the reissued complaint was
returned to the Regional Office by the Postal Service marked “Re-
fused.” It is well settled that a respondent’s failure or refusal to accept
certified mail or to provide for appropriate service cannot serve to
defeat the purposes of the Act. See, e.g., I.C.E. Electric, Inc., 339
NLRB No. 36, fn. 2 (2003), and cases cited there.
answer by September 7, 2004, a motion for default
judgment would be filed. The Respondent has not filed
an answer to the reissued complaint.
On September 21, 2004, the General Counsel filed a
Motion for Default Judgment with the Board. On Sep-
tember 30, 2004, 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 Default 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 reissued complaint affirmatively
stated that unless an answer was filed within 14 days
from service of the complaint, all the allegations in the
complaint would be considered admitted. Further, the
undisputed allegations in the General Counsel’s motion
disclose that the Region, by letter dated August 24, 2004,
notified the Respondent that unless an answer was re-
ceived by September 7, 2004, a motion for default judg-
ment would be filed. As stated above, however, the Re-
spondent has failed to file an answer to the reissued
complaint.
Accordingly, in the absence of good cause being
shown for the failure to file an answer, we grant the Gen-
eral 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, an Illinois cor-
poration with an office and place of business in Franklin
Park, Illinois, has been engaged in the business of indus-
trial painting.
During the calendar year preceding issuance of the re-
issued complaint, a representative period, the Respon-
dent, in conducting its business operations described
above, performed services valued in excess of $50,000 in
States other than the State 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 Painters District Council No. 14
of the International Union of Painters and Allied Trades
(of Chicago, Cook, Lake, Will, and Grundy Counties,
Illinois) is a labor organization within the meaning of
Section 2(5) of the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
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:
Dmitri Xenikakis Co-Owner; Chief Operating Officer
John Xenikakis Co-Owner
On about August 26, 2003, the Respondent, by John
and Dmitri Xenikakis, at a hotel in Beloit, Wisconsin,
interrogated employees about their union activities.
On about August 26, 2003, the Respondent discharged
its employee Jesus Perez, and since that date has failed
and refused to reinstate him.
The Respondent discharged Perez because he engaged
in union and/or protected concerted activities, and to
discourage employees from enaging in these activities.
CONCLUSION OF LAW
By interrogating employees about their union activi-
ties, the Respondent has interfered with, restrained, and
coerced employees in the exercise of the rights guaran-
teed them by Section 7 of the Act, in violation of Section
8(a)(1) of the Act. In addition, by discharging Jesus
Perez, the Respondent has discriminated 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. The Respondent’s unfair labor practices af-
fect 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.2 Specifically, having
found that the Respondent violated Section 8(a)(3) and
(1) by discharging employee Jesus Perez, we shall order
the Respondent to offer Perez full reinstatement to his
former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to his senior-
ity or any other rights and privileges previously enjoyed.

2 We note that the parties’ settlement agreement provided for the
posting of notices to employees in both English and Spanish. In light
of this, we have provided for a Spanish language translation of the
Board’s notice.
Chairman Battista notes that the settlement agreement has been set
aside, and thus cannot be relied upon for the above provision. How-
ever, he sees no harm or prejudice in providing a Spanish language
translation of the Board’s notice.
We shall also order the Respondent to make Perez whole
for any loss of earnings and other benefits suffered as a
result of the discrimination against him. Backpay shall
be computed in accordance with F. W. Woolworth Co.,
90 NLRB 289 (1950), with interest as prescribed in New
Horizons for the Retarded, 283 NLRB 1173 (1987).
The Respondent shall also be required to remove from
its files all references to the unlawful discharge of Perez,
and to notify him in writing that this has been done and
that the discharge will not be used against him in any
way.
ORDER
The National Labor Relations Board orders that the
Respondent, Pannex Painting Company, Inc., Franklin
Park, Illinois, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Interrogating employees about their union activi-
ties.
(b) Discharging employees because they engage in un-
ion or protected concerted activities.
(c) 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, offer
Jesus Perez full reinstatement to his former job or, if that
job no longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority or any other rights
and privileges previously enjoyed.
(b) Make Jesus Perez whole for any loss of earnings
and other benefits suffered as a result of his unlawful
discharge, with interest, 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 all references to the unlawful discharge of
Jesus Perez, and within 3 days thereafter, notify Perez in
writing that this has been done and that the unlawful dis-
charge will not be used against him in any way.
(d) 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 re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its facility in Franklin Park, Illinois, copies of the at-
PANNEX PAINTING CO. 3
tached notice marked “Appendix.”3 Copies of the notice,
on forms provided by the Regional Director for Region
13, after being signed by the Respondent’s authorized
representative, shall be translated into Spanish, and both
Spanish and English notices shall be posted by the Re-
spondent 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 facility involved in these proceedings, the Re-
spondent 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 August 26, 2003.
(f) Within 21 days after service by the Region, file with
the Regional Director a sworn certification of a responsi-
ble 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 vio-
lated Federal labor law and has ordered us to post and obey
this notice.

3 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.”
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 interrogate employees about their union
activities.
WE WILL NOT discharge employees because they en-
gage in union or protected concerted activities.
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 Jesus Perez full reinstatement to his former
job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
any other rights and privileges previously enjoyed.
WE WILL make Jesus Perez whole for loss of earnings
and other benefits resulting from his unlawful discharge,
with interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files all references to the unlaw-
ful discharge of Jesus Perez, and WE WILL, within 3 days
thereafter, notify him in writing that this has been done
and that the unlawful discharge will not be used against
him in any way.
PANNEX PAINTING COMPANY, INC.