R.C. Electric

National Labor Relations Board - Board Decisions

May 14, 1997

323 N.L.R.B. 132 (N.L.R.B. 1997)

1
NOTICE: This opinion is subject to formal revision before publication
in the Board volumes of NLRB decisions. Readers are requested to
notify the Executive Secretary, National Labor Relations Board,
Washington, D.C. 20570, of any typographical or other formal er-
rors so that corrections can be included in the bound volumes.
Ralph C. Garcia, a sole proprietorship d/b/a R.C.
Electric and International Brotherhood of Elec-
trical Workers, Local No. 234. Case 32–CA–
15516
May 14, 1997
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX AND
HIGGINS
Upon a charge filed by the Union on June 20, 1996,
the General Counsel of the National Labor Relations
Board issued a complaint and an order withdrawing
approval of settlement1 on January 17, 1997, against
Ralph C. Garcia, a sole proprietorship d/b/a R.C. Elec-
tric, the Respondent, alleging that it has violated Sec-
tion 8(a)(1) and (3) of the National Labor Relations
Act. Although properly served copies of the charge
and complaint, the Respondent failed to file an answer.
On April 21, 1997, the General Counsel filed a Mo-
tion for Summary Judgment with the Board. On April
22, 1997, 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 Respond-
ent filed no response. The allegations in the motion are
therefore undisputed.
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, un-
less 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 al-
legations in the Motion for Summary Judgment dis-
close that the Region, by letter dated March 11, 1997,
notified the Respondent that unless an answer were re-
ceived by March 17, 1997, a Motion for Summary
Judgment would be filed.
In the absence of good cause being shown for the
failure to file a timely answer, we grant the General
Counsel’s Motion for Summary Judgment.
On the entire record, the Board makes the following
1 The order and complaint states that a settlement was approved
by the Regional Director for Region 32 on September 13, 1996, but
that the Respondent failed to discharge his obligations under the set-
tlement agreement.
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a California
sole proprietorship with an office and place of business
in Salinas, California, has been engaged as an elec-
trical contractor in the building and construction indus-
try, providing services to customers on both a retail
and nonretail basis. During the 12-month period pre-
ceding issuance of the complaint, the Respondent, in
the course and conduct of its business operations, re-
ceived gross revenues in excess of $500,000, pur-
chased and received goods and materials valued in ex-
cess of $5000 which originated outside the State of
California, and provided services valued in excess of
$50,000 directly to customers or business enterprises
who themselves meet one of the Board’s jurisdictional
standards, other than the indirect inflow or indirect
outflow standards. 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
On March 19, and April 3, 1996, the Respondent in-
terrogated applicants for employment concerning their
union membership and/or activities. On April 11, 1996,
the Respondent told an applicant for employment that
he would not be hired because of his union member-
ship and/or activities.
Since about March 18, 1996, the Respondent has re-
fused to hire James Ray Nichols and Forest Bayer be-
cause they joined or assisted the Union or because they
engaged in other protected concerted activities for the
purpose of mutual aid or protection.
CONCLUSION OF LAW
By the acts and conduct described above, the Re-
spondent has interfered with, restrained, and coerced,
and is interfering with, restraining, and coercing, em-
ployees in the exercise of rights guaranteed in Section
7 of the Act, and has thereby engaged in unfair labor
practices affecting commerce within the meaning of
Section 8(a)(1) and Section 2(6) and (7) of the Act.
By refusing to hire Nichols and Bayer, the Respond-
ent has also discriminated, and is discriminating, in re-
gard to the hire or tenure or terms and conditions of
employment of its employees, thereby discouraging
membership in a labor organization, and has thereby
engaged in unfair labor practices affecting commerce
within the meaning of Section 8(a)(3) and Section 2(6)
and (7) of the Act.
323 NLRB No. 132
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, we shall order it to cease
and desist and to take certain affirmative action de-
signed to effectuate the policies of the Act. Specifi-
cally, having found that the Respondent has violated
Section 8(a)(3) and (1) by refusing to hire James Ray
Nichols and Forest Bayer, we shall order the Respond-
ent to offer the discriminatees employment to the posi-
tions which they would have had, but for the discrimi-
nation against them, or, if those positions no longer
exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privi-
leges which they would have enjoyed, and to make
them whole for any loss of earnings and other benefits
suffered as a result of the discrimination against them.
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).
ORDER
The National Labor Relations Board orders that the
Respondent, Ralph C. Garcia, a sole proprietorship
d/b/a R.C. Electric, Salinas, California, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Interrogating applicants for employment concern-
ing their Union membership and/or activities.
(b) Telling applicants for employment that they will
not be hired because of their Union membership and/or
activities.
(c) Refusing to hire applicants for employment be-
cause they join or assist the Union or because they en-
gage in other protected concerted activities for the pur-
pose of mutual aid or protection.
(d) In any like or related manner interfering with,
restraining, 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
James Ray Nichols and Forest Bayer employment to
positions that they would have had, but for the dis-
crimination against them, or, if those positions no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights or
privileges which they would have enjoyed.
(b) Make Ray Nichols and Forest Bayer whole for
any loss of earnings and other benefits suffered as a
result of the discrimination against them, in the manner
set forth in the remedy section of this decision.
(c) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination
and copying, all payroll records, social security pay-
ment records, timecards, personnel records and reports,
and all other records necessary to analyze the amount
of backpay due under the terms of this Order.
(d) Within 14 days after service by the Region, post
at its facility in Salinas, California, copies of the at-
tached notice marked ‘‘Appendix.’’2 Copies of the no-
tice, on forms provided by the Regional Director for
Region 32, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Re-
spondent 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 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 pro-
ceedings, 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 Re-
spondent at any time since June 20, 1996.
(e) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a
responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to
comply.
Dated, Washington, D.C. May 14, 1997
llllllllllllllllll
William B. Gould IV, Chairman
llllllllllllllllll
Sarah M. Fox, Member
llllllllllllllllll
John E. Higgins, Jr., 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
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
3R.C. ELECTRIC
WE WILL NOT interrogate applicants for employment
concerning their membership in International Brother-
hood of Electrical Workers, Local No. 234 and/or their
union activities.
WE WILL NOT tell applicants for employment that
they will not be hired because of their union member-
ship and/or activities.
WE WILL NOT refuse to hire applicants for employ-
ment because they join or assist the Union or because
they engage in other protected concerted activities for
the purpose of mutual aid or protection.
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 this
Order, offer James Ray Nichols and Forest Bayer em-
ployment to positions that they would have had, but
for the discrimination against them, or, if those posi-
tions no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or any other
rights or privileges which they would have enjoyed.
WE WILL make Ray Nichols and Forest Bayer whole
for any loss of earnings and other benefits suffered as
a result of the discrimination against them.
RALPH C. GARCIA, A SOLE PROPRIETOR-
SHIP D/B/A R.C. ELECTRIC