Thomas Electric Co.

National Labor Relations Board - Board Decisions

Mar 7, 1997

323 N.L.R.B. 32 (N.L.R.B. 1997)

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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.
Marcia L. Glosenger, an Individual, as Sole Propri­
etor of Glosenger Electrical Services d/b/a
Thomas Electric Company and International
Brotherhood of Electrical Workers, Local 701,
AFL–CIO. Case 13–CA–34561
March 7, 1997
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX AND
HIGGINS
Upon a charge filed by the Union on September 5,
1996, the General Counsel of the National Labor Rela­
tions Board issued a complaint on November 19, 1996,
against Marcia L. Glosenger, an individual, as sole
proprietor of Glosenger Electrical Services d/b/a
Thomas Electric Company, the Respondent, alleging
that it has violated Section 8(a)(1) and (3) of the Na­
tional Labor Relations Act. Although properly served
copies of the charge and complaint,1 the Respondent
failed to file an answer.
On February 11, 1997, the General Counsel filed a
Motion for Summary Judgment with the Board and on
February 21, 1997, a supplement to the motion. On
February 12, 1997, the Board issued an order transfer-
ring the proceeding to the Board and a Notice to Show
Cause why the motion should not be granted. The Re­
spondent filed no response. The allegations in the mo­
tion 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 December 31,
1996, notified the Respondent that unless an answer
1 The General Counsel’s motion, as supplemented, indicates the
complaint was served by both certified and regular mail but that a
copy of the complaint sent by certified mail on January 21, 1997,
was returned as unclaimed and that the copy sent by regular mail
has not been returned. The failure of the Postal Service to return
documents served by regular mail indicates actual receipt of those
documents by the Respondent. Lite Flight, Inc., 285 NLRB 649, 650
(1987). Furthermore, failure or refusal to accept service cannot de-
feat the purposes of the Act. See, e.g., Michigan Expediting Service,
282 NLRB 210 fn. 6 (1986). Therefore, we find that the Respondent
was properly served with the complaint.
were received by January 10, 1997, a Motion for Sum­
mary 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
FINDINGS OF FACT
I. JURISDICTION
At all material times the Respondent has been
owned by Marcia L. Glosenger, a sole proprietorship
d/b/a Thomas Electric Company, with an office and
place of business in West Chicago, Illinois, and has
been engaged in residential electrical construction.
During the 1995 calendar year, the Respondent, in con­
ducting its business operations, purchased and received
goods at its West Chicago, Illinois facility valued in
excess of $50,000 from other enterprises located within
the State of Illinois, each of which other enterprises
had received these goods directly from points outside
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 the Union
is a labor organization within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
About August 2, 1996, the Respondent interfered
with its employees’ union activities by instructing
them not to wear clothing with union insignia on com­
pany jobsites and threatened its employees with termi­
nation because of their union activities.
About August 23, 1996, the Respondent discharged
and has since failed to reinstate its employee Stephen
N. Schuler because he assisted the Union and engaged
in concerted activities, and to discourage employees
from engaging in these activities.
CONCLUSIONS OF LAW
By the acts and conduct described above, the Re­
spondent has been interfering with, restraining, and co­
ercing employees in the exercise of their rights guaran­
teed 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 discharging and failing to reinstate its em­
ployee Stephen N. Schuler, the Respondent has also
been discriminating in regard to the hire or tenure or
terms or conditions of employment of its employees,
thereby discouraging membership in a labor organiza­
tion 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. 32
2 DECISIONS 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 discharging and failing to
reinstate Stephen N. Schuler, we shall order the Re­
spondent to offer him 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 or privileges previously enjoyed,
and to make him 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 Re­
tarded, 283 NLRB 1173 (1987). The Respondent shall
also be required to remove from its files any and all
references to the unlawful discharge, and to notify the
discriminatee in writing that this has been done.
ORDER
The National Labor Relations Board orders that the
Respondent, Marcia L. Glosenger, an individual, as
sole proprietor of Glosenger Electrical Services d/b/a
Thomas Electric Company, West Chicago, Illinois, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Instructing employees not to wear clothing with
union insignia on company jobsites or threatening
them with termination because of their union activities.
(b) Discharging or failing to reinstate employees be-
cause they assist International Brotherhood of Elec­
trical Workers, Local 701, AFL–CIO, or engage in
concerted activities, or to discourage them from engag­
ing in these 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
Stephen N. Schuler full reinstatement to his former job
or, if that job no longer exists, to a substantially equiv­
alent position, without prejudice to his seniority or any
other rights or privileges previously enjoyed.
(b) Make Stephen N. Schuler whole, with interest,
for any loss of earnings and other benefits suffered as
a result of the discrimination against him, in the man­
ner set forth in the remedy section of this decision.
(c) Within 14 days from the date of this order, re-
move from its files any and all references to the un­
lawful discharge, and within 3 days thereafter notify
the discriminatee in writing that this has been done and
that the unlawful discharge will not be used against
him in any way.
(d) 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.
(e) Within 14 days after service by the Region, post
at its facility in West Chicago, 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 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 September 5, 1996.
(f) 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. March 7, 1997
������������������
William B. Gould IV, Chairman
������������������
Sarah M. Fox, Member
������������������
John E. Higgins, Jr., Member
(SEAL) 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.’’
THOMAS ELECTRIC CO. 3
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.
WE WILL NOT instruct our employees not to wear
clothing with union insignia on company jobsites or
threaten them with termination because of their union
activities.
WE WILL NOT discharge or fail to reinstate our em­
ployees because they assist International Brotherhood
of Electrical Workers, Local 701, AFL–CIO, or engage
in concerted activities, or to discourage them from en-
gaging in these 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 this
order, offer Stephen N. Schuler full reinstatement to
his former job or, if that job no longer exists, to a sub­
stantially equivalent position, without prejudice to his
seniority or any other rights or privileges previously
enjoyed.
WE WILL make Stephen N. Schuler whole for any
loss of earnings and other benefits suffered as a result
of the discrimination against him, less any net interim
earnings, plus interest.
WE WILL, within 14 days from the date of this
order, remove from our files any and all references to
the unlawful discharge, and within 3 days thereafter
notify the discriminatee in writing that this has been
done and that the unlawful discharge will not be used
against him in any way.
MARCIA L. GLOSENGER, AN INDIVID­
UAL, AS SOLE PROPRIETOR OF
GLOSENGER ELECTRICAL SERVICES
D/B/A THOMAS ELECTRIC COMPANY

The National Labor Relations Board has found that we violated the National Labor Relations Act and
has ordered us to post and abide by this notice.
WE WILL NOT instruct our employees not to wear clothing with union insignia on company jobsites
or threaten them with termination because of their union activities.
WE WILL NOT discharge or fail to reinstate our employees because they assist INTERNATIONAL
BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 701, AFL–CIO, or engage in concerted ac­
tivities, or to discourage them from engaging in these 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 this order, offer STEPHEN N. SCHULER full reinstate­
ment 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 or privileges previously enjoyed.
WE WILL make STEPHEN N. SCHULER whole for any loss of earnings and other benefits suf­
fered as a result of the discrimination against him, less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of this order, remove from our files any and all references
to the unlawful discharge, and within 3 days thereafter notify the discriminatee in writing that this
has been done and that the unlawful discharge will not be used against him in any way.
MARCIA L. GLOSENGER, an Individual, as Sole
Proprietor of GLOSENGER ELECTRICAL
SERVICES d/b/a THOMAS ELECTRIC
COMPANY
(Employer)
Dated By
(Representative) (Title)
200 West Adams Street, Suite 800, Chicago, Illinois 60606-5208, Telephone 312–353–7589.
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