Sage Professional Painting Co.

National Labor Relations Board - Board Decisions

Apr 30, 2003

338 N.L.R.B. 1068 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1068
Sage Professional Painting Co., Inc. and Southwest
Regional Council of Carpenters, affiliated with
United Brotherhood of Carpenters and Joiners
of America. Cases 28–CA–17975 and 28–CA–
18080
April 30, 2003
DECISION AND ORDER
BY MEMBERS SCHAUMBER, WALSH, AND ACOSTA
The General Counsel seeks a default judgment1 in this
case on the ground that the Respondent has failed to file
an answer to the complaint. Upon charges and amended
charges filed by Southwest Regional Council of Carpen-
ters, affiliated with United Brotherhood of Carpenters
and Joiners of America (the Union), the General Counsel
issued a consolidated complaint on September 30, 2002,
against Sage Professional Painting Co., Inc. (the Respon-
dent), alleging that it has violated Section 8(a)(3) and (1)
of the Act. The Respondent failed to file an answer.
On December 9, 2002, the General Counsel filed mo-
tions to transfer and continue matters before the board
and for summary judgment. On December 11, 2002, the
Board issued an order transferring the proceeding to the
Board and a Notice to Show Cause why the motion
should not be granted. On December 20, 2002, Respon-
dent’s attorney filed an entry of appearance, a response
to the Notice to Show Cause, and a cross-motion to ex-
tend time for filing an answer to the complaint with an
answer attached.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Default Judgment
This case involves a pro se litigant’s failure to answer
multiple complaints. 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 itself
states that unless an answer is filed within 14 days, all
the allegations in the complaint “shall be considered to
be admitted to be true and shall be so found by the
Board.” An order consolidating cases, consolidated
complaint, and notice of hearing were issued with an
answer due on September 13, 2002. No answer was filed
by that date. An order further consolidating cases, sec-
ond consolidated complaint, and notice of hearing were
issued with an answer due by October 14, 2002. Again,

1 The General Counsel’s motion requests summary judgment on the
ground that the Respondent has failed to file an answer to the com-
plaint. Accordingly, we construe and shall refer to the General Coun-
sel’s motion as a Motion for Default Judgment.
no answer was filed by that date. Further, the undisputed
allegations in the Motion for Default Judgment disclose
that the Region, by letter dated November 15, 2002, noti-
fied Respondent that unless an answer was received by
November 29, 2002, a Motion for Default Judgment
would be filed. The aforesaid papers were served on
Respondent by mail and certified mail, in some cases
more than one time.2 The second consolidated complaint
notified Respondent that a hearing was scheduled to
commence on the allegations on December 10, 2002.
In his December 20, 2002 motion to extend time for
filing an answer to the complaint, counsel for the Re-
spondent contends that prior to retaining counsel on De-
cember 18, 2002, Respondent was “not aware of its re-
sponsibilities to act in this matter, and [of] the conse-
quences of its failure to act in this matter.” The Respon-
dent further contends that it has meritorious defenses to
the complaint.
We find that the Respondent has not shown good cause
for its failure to file a timely answer to the complaint. As
noted above, it is undisputed that the Region repeatedly
informed the Respondent of its obligation to answer the
complaint. In addition, it is undisputed that the Respon-
dent was informed that failure to file a timely answer to
the complaint would result in a Motion for Default Judg-
ment being filed.
Although the Board has shown some leniency towards
pro se respondents, merely being unrepresented by coun-
sel does not establish a good-cause explanation for fail-
ing to file a timely answer. See Lockhart Concrete, 336
NLRB 956, 957 (2001). In addition, the Respondent’s
motion to extend time for filing answer and response to
Notice to Show Cause [why default judgment should not
be granted] are dated December 20, 2002, more than 3
months after the first complaint and 2 months after the
second. They do not establish proper cause to grant an
extension of time, or deny the Motion for Default Judg-
ment. Each provides only summary reasons for the Re-
spondent’s failure to answer and why the motion should
not be granted, without further explanation and support.
2 The Respondent did not accept the complaint and letter, which
were sent by certified mail. The Respondent’s failure or refusal to
claim certified mail or to provide for receiving appropriate service
cannot serve to defeat the purposes of the Act. A.S.B. Cloture, Ltd., 313
NLRB 1012 fn. 1 (1994); Michigan Expediting Service, 282 NLRB 210
fn. 6 (1986), enfd. mem. sub nom. NLRB v. Shabazz, 869 F.2d 1492
(6th Cir. 1989). The complaint and letter were also sent by regular mail
and were never returned. The failure of the Postal Service to return
documents sent by regular mail establishes actual receipt. Lite Flight,
285 NLRB 649, 650 (1987), enfd. mem. sub nom. NLRB v. Sherman,
843 F.2d 1392 (6th Cir. 1988). Furthermore, the Respondent does not
contend in its response to the Notice to Show Cause and its motion to
extend time that it did not receive the complaint and letter.
338 NLRB No. 162
SAGE PROFESSIONAL PAINTING CO. 1069
We find, therefore, that the Respondent’s contention
that it had not retained counsel, and so was unaware of
both its responsibility to answer the complaint and the
consequences of its failure to do so, does not show good
cause for its failure to timely answer the complaint. Ab-
sent such a showing, we will not address the Respon-
dent’s assertion that it has a meritorious defense to the
complaint allegations. See Lockhart Concrete, supra.
Accordingly, we grant the General 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, a Nevada
corporation, with an office and place of business in Las
Vegas, Nevada, has been engaged as a painting and deco-
rating contractor in the construction industry.

During the 12-month period ending May 31, 2002, the
Respondent, in conducting its business operations as
described above, purchased and received at its Las Vegas
facility goods valued in excess of $50,000 directly from
points outside the State of Nevada. We find that the Re-
spondent 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 times material, the following-named persons
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:

Sidney A. Lewis — Owner and President
Joaquin Barajas — Partner
Elyse Romano — Project Manager

In a telephone conversation in or about March 2002,3
President Lewis interrogated employees about their un-
ion membership, activities, and sympathies.
On or about May 16, Project Manager Romano: (1)
denied employees and representatives of the Union ac-
cess to the Cancun Caribe jobsite to discuss the rein-
statement of employee Bulmaro Gomez; and (2) interro-
gated employees about their union membership, activi-
ties, and sympathies. On or about the same date,
Romano and Respondent’s partner, Barajas, engaged in
surveillance of employees engaged in union and other
3 All subsequent dates are in 2002 unless noted otherwise.
concerted activities by taking photographs and making
notes on a clipboard at the Cancun Caribe jobsite.
Also on or about May 16, Romano, Barajas, and Lewis
promulgated an overly broad and discriminatory no-
solicitation rule at the Cancun Caribe jobsite by: (1) tell-
ing employees not to talk to union representatives; and
(2) telling employees to take their lunchbreak inside the
building being constructed at the jobsite rather in the
parking lot.
From about May to July, on specific dates known to
the Respondent, Romano: (1) interrogated employees
about their union membership, activities, and sympa-
thies; (2) threatened employees with discharge because
of their union membership, activities, and sympathies;
and (3) created an impression among its employees that
their union activities were under surveillance by Respon-
dent.
On or about May 28, Lewis engaged in surveillance of
employees engaged in union and other concerted activi-
ties by taking photographs at the Cancun Caribe jobsite.
On or about July 2, at the Cancun Caribe jobsite
Romano: (1) interrogated employees about their union
membership, activities, and sympathies; (2) promulgated
an overly broad and discriminatory no-solicitation rule
by telling employees not to talk to union representatives
at the jobsite; and (3) threatened employees with dis-
charge if they talked to union representatives at the job-
site.
On or about July 6, certain employees of the Respon-
dent employed at Respondent’s Cancun Caribe jobsite,
including Jesus Navarro and Clemente Menchaca, ceased
work concertedly and engaged in a strike. The strike was
caused by Respondent’s refusal to distribute the payroll
checks of its employees. On or about July 8, the em-
ployees who engaged in the strike appeared for work at
the Cancun Caribe jobsite and were denied work oppor-
tunities by the Respondent because of their strike activi-
ties.
On or about July 9, Romano engaged in surveillance of
employees engaged in union activities by taking photo-
graphs and making notes on a clipboard at the Cancun
Caribe jobsite.
On or about July 16, at the Cancun Caribe jobsite,
Romano: (1) threatened employees with the loss of con-
tinued employment and loss of reinstatement rights be-
cause they engaged in union and concerted activities; and
(2) disparaged the Union in order to discourage employ-
ees from supporting or assisting the Union.
We find that the Respondent violated Section 8(a)(1)
of the Act by each of the acts described above.
On or about May 16, the Respondent failed and re-
fused to reinstate employee Gomez, and discharged its
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1070
employee Oscar Guizar. On or about July 5, the Re-
spondent discharged employees Ben Garcia, Mark Gar-
cia, and Brandon Garcia. The Respondent engaged in
the conduct described above because the named employ-
ees formed, joined, or assisted the Union and engaged in
concerted activities, and to discourage employees from
engaging in these activities.
From about July 9 to about July 16, certain employees
of the Respondent employed at Respondent’s Cancun
Caribe jobsite ceased work concertedly and engaged in a
strike. The strike was caused or prolonged by the
Respondent’s unfair labor practices.
On or about July 16, by letter from the Union, the fol-
lowing employees who engaged in the strike made an
unconditional offer to return to their former positions of
employment with the Respondent:

Eleazar Arana Richard Bell
Jason Ardoseh Clifford Bauste
Thomas Castanon Manuel Castillo
Ruben Castillo Scott Dahm
Augustin Flores Cesar Gonzalez
Donald Gresham Juan Hernandez
Cesar Iglesias Cesar Jimenez
Emmet Jones Danny Kauffman
Emmanuel Madero Eufrosino Madrigal
Jospeh Malaney Adan Martinez
Tony Martinez Clemente Menchaca
Carlos Munoz Jesus Navarro
Angel Nunez Javier Pelayo
Octavio Pelayo Guillermo Perez
Hector Placencia Juan Ramos
Baudielio Reinoso Demetrio Rubio
Clyde Smith Bruce Alva Tilly
Ivan Verdin

Since on or about July 16, the Respondent has failed
and refused to reinstate these employees to their former
positions of employment. On or about the same date,
Respondent terminated these employees.
The Respondent engaged in the refusals to reinstate
and terminations described above because the named
employees formed, joined, or assisted the Union and en-
gaged in concerted activities, and to discourage employ-
ees from engaging in these activities. We therefore find
that each of these acts by Respondent violated Section
8(a)(3) and (1) of the Act.
CONCLUSIONS OF LAW
1. By the acts and conduct described above, the Re-
spondent has been interfering with, restraining, and co-
ercing employees in the exercise of the rights guaranteed
in Section 7 of the Act, in violation of Section 8(a)(1) of
the Act, and has thereby engaged in unfair labor practices
affecting commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Additionally, by failing and refusing to reinstate
employees and by terminating employees because they
engaged in union and other protected activities, the Re-
spondent 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) and Section 2(6)
and (7) of the Act.
REMEDY
Having found that the Respondent engaged in certain
unfair labor practices, we shall order it to cease and de-
sist 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 failing and refusing to reinstate Bulmaro Gomez,
and by unlawfully discharging other employees, we shall
order the Respondent to offer these employees full rein-
statement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privi-
leges previously enjoyed. Further, we shall order the
Respondent to make the aforementioned employees
whole for any loss of earnings and other benefits suffered
as a result of the discrimination against them.
Having found that the Respondent violated Section
8(a)(1) by denying Jesus Navarro, Clemente Marchaca,
and certain other unnamed employees work opportunities
because they engaged in a strike, we shall also order the
Respondent to make these employees whole for any loss
of earnings and other benefits suffered as a result of the
Respondent’s unlawful action.
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 be required to re-
move from its files any and all references to the unlawful
failure to reinstate Bulmaro Gomez and the unlawful
discharges of the above-named employees, and to notify
the discriminatees in writing that this has been done.
ORDER
The National Labor Relations Board orders that the
Respondent, Sage Professional Painting Co., Inc., Las
Vegas, Nevada, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Interrogating employees about their union member-
ship, activities, and sympathies.
SAGE PROFESSIONAL PAINTING CO. 1071
(b) Denying employees and representatives of the Un-
ion access to the Cancun Caribe jobsite to discuss the
reinstatement of an employee.
(c) Engaging in surveillance of its employees who are
engaged in union and other concerted activities by taking
photographs and/or making notes on a clipboard.
(d) Promulgating overly broad and discriminatory no-
solicitation rules by: (1) telling its employees not to talk
to union representatives; (2) telling its employees to take
their lunch break inside the building being constructed at
the Cancun Caribe jobsite rather in the parking lot; and
(3) telling its employees not to talk to union representa-
tives at the jobsite.
(e) Threatening its employees with discharge because
of their union membership, activities, and sympathies.
(f) Creating an impression among its employees that
their union activities are under surveillance by the Re-
spondent.
(g) Threatening its employees with discharge if they
talked to union representatives at the jobsite.
(h) Threatening its employees with the loss of contin-
ued employment and loss of reinstatement rights because
they engaged in union and concerted activities.
(i) Disparaging the Union in order to discourage em-
ployees from supporting or assisting the Union.
(j) Denying work opportunities to employees because
they engaged in a strike.
(k) Discriminating against employees because they en-
gaged in union activities by refusing to reinstate them
and by discharging them.
(l) 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 to
the following employees full reinstatement to their for-
mer jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority
or any other rights or privileges previously enjoyed:

Eleazar Arana Jason Ardoseh
Clifford Bauste Richard Bell
Thomas Castanon Manuel Castillo
Ruben Castillo Scott Dahm
Augustin Flores Cesar Gonzalez
Donald Gresham Juan Hernandez
Cesar Iglesias Cesar Jimenez
Emmet Jones Danny Kauffman
Emmanuel Madero Eufrosino Madrigal
Jospeh Malaney Adan Martinez
Tony Martinez Clemente Menchaca
Carlos Munoz Jesus Navarro
Angel Nunez Javier Pelayo
Octavio Pelayo Guillermo Perez
Hector Placencia Juan Ramos
Baudielio Reinoso Demetrio Rubio
Clyde Smith Bruce Alva Tilly
Ivan Verdin Bulmaro Gomez
Oscar Guizar Ben Garcia
Mark Garcia Brandon Garcia

(b) Make these employees whole for any loss of earn-
ings and other benefits suffered as a result of the dis-
crimination against them, 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 any and all references to the unlawful fail-
ure to reinstate Bulmaro Gomez and the unlawful dis-
charges of the other named employees, and within 3 days
thereafter, notify them in writing that this has been done,
and that the unlawful conduct will not be used against
them in any way.
(d) Make whole Jesus Navarro, Clemente Menchaca,
and other employees denied work opportunities after
they engaged in a strike for any loss of earnings and
other benefits suffered as a result of their unlawful treat-
ment, with interest, in the manner set forth in the remedy
section of this decision.
(e) 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 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.
(f) Within 14 days after service by the Region, post at
its facilities in Las Vegas, Nevada, copies of the attached
notice marked “Appendix.”4 Copies of the notice, on
forms provided by the Regional Director for Region 28,
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. Reasonable steps shall be taken by the
Respondent 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, Respon-
dent has gone out of business or closed the facility in-

4 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.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1072
volved in these proceedings, the Respondent shall dupli-
cate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed
by Respondent at any time since March 2002.
(g) 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 vio-
lated 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 interrogate our employees about their
union membership, activities, and sympathies.
WE WILL NOT deny our employees and representatives
of the Union access to the Cancun Caribe jobsite to dis-
cuss the reinstatement of employees.
WE WILL NOT engage in surveillance of our employees
who are engaged in union and other concerted activities
by taking photographs and/or making notes on a clip-
board.
WE WILL NOT promulgate overly broad and discrimina-
tory no-solicitation rules by: (a) telling our employees
not to talk to union representatives, (b) telling our em-
ployees to take their lunch break inside the building be-
ing constructed at the Cancun Caribe jobsite rather in the
parking lot, or (c) telling our employees not to talk to
union representatives at the jobsite.
WE WILL NOT threaten our employees with discharge
because of their union membership, activities and sympa-
thies.
WE WILL NOT create an impression among our em-
ployees that we are engaging in surveillance of their un-
ion activities.
WE WILL NOT threaten our employees with discharge if
they talk to union representatives at the jobsite.
WE WIL NOT threaten our employees with the loss of
continued employment and loss of reinstatement rights
because they engaged in union and concerted activities.
WE WILL NOT disparage the Union in order to discour-
age employees from supporting or assisting the Union.
WE WILL NOT deny work opportunities to employees
who appear for work at the Cancun Caribe jobsite after
engaging in a strike prompted by our refusal to distribute
payroll checks.
WE WILL NOT discriminate against employees because
they engaged in union activities by refusing to reinstate
them and by discharging them.
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 the following employees immediate and full rein-
statement to their former jobs, or, if those jobs no longer
exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privi-
leges previously enjoyed:

Eleazar Arana Jason Ardoseh
Clifford Bauste Richard Bell
Thomas Castanon Manuel Castillo
Ruben Castillo Scott Dahm
Augustin Flores Cesar Gonzalez
Donald Gresham Juan Hernandez
Cesar Iglesias Cesar Jimenez
Emmet Jones Danny Kauffman
Emmanuel Madero Eufrosino Madrigal
Jospeh Malaney Adan Martinez
Tony Martinez Clemente Menchaca
Carlos Munoz Jesus Navarro
Angel Nunez Javier Pelayo
Octavio Pelayo Guillermo Perez
Hector Placencia Juan Ramos
Baudielio Reinoso Demetrio Rubio
Clyde Smith Bruce Alva Tilly
Ivan Verdin Bulmaro Gomez
Oscar Guizar Ben Garcia
Mark Garcia Brandon Garcia

WE WILL make these employees whole, with interest,
for any loss of earnings and other benefits suffered as a
result of the discrimination against them.
WE WILL make whole, with interest, Jesus Navarro,
Clemente Menchaca, and other employees for denying
them work opportunities after they engaged in a strike.
SAGE PROFESSIONAL PAINTING CO. 1073
WE WILL, within 14 days from the date of this Order,
remove from our files any and all references to the
unlawful failure to reinstate or discharges of these em-
ployees, and within 3 days thereafter, notify them in
writing that this has been done, and that the unlawful
conduct will not be used against them in any way.
SAGE PROFESSIONAL PAINTING CO., INC.