Vortex Electrical Systems

National Labor Relations Board - Board Decisions

Oct 29, 2004

343 N.L.R.B. 55 (N.L.R.B. 2004)

343 NLRB No. 55
Vortex Electrical Systems, Inc. and International
Brotherhood of Electrical Workers, Local Union
479 a/w International Brotherhood of Electrical
Workers, AFL–CIO
Vortex Electrical Systems, Inc. and Homer Durand.
Cases 16–CA–22990 and 16–CA–23099
October 29, 2004
DECISION AND ORDER
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 complaint. Upon charges filed by the
Union in Case 16–CA–22990 on August 11, 2003, and
Homer Durand in Case 16–CA–23099 on September 25,
2003, the General Counsel issued the original consoli-
dated complaint on October 31, 2003, against Vortex
Electrical Systems, Inc., the Respondent, alleging that it
had violated Section 8(a)(1) and (3) of the Act.
Thereafter, the Respondent and the Charging Parties
entered into an informal settlement agreement, which
was approved by the Regional Director on December 9,
2003. The settlement agreement required the Respon-
dent to, among other things: (1) post a notice to employ-
ees regarding the complaint allegations; (2) compensate
Michael Sowell with backpay totaling $1536; (3) remove
from its files and records any references to Sowell’s dis-
charge; and (4) advise Sowell in writing that this action
had been taken and that the discharge will not be used
against him in any way.
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 July 30, 2004, the Regional Director issued an or-
der revoking approval of settlement agreement, order
consolidating cases, consolidated complaint and notice of
hearing (the order) on the ground that the Respondent
had failed to comply with all of the terms of the settle-
ment agreement. Specifically, the order alleged that the
Respondent had failed to post a notice, and had failed to
fully compensate Sowell pursuant to the backpay provi-
sion of the settlement agreement.
The Order provided that, pursuant to Sections 102.20
and 102.21 of the Board’s Rules and Regulations, the
Respondent was required to file an answer to the new
consolidated complaint within 14 days from service of it.
The Respondent failed to file an answer to the new con-
solidated complaint. On August 25, 2004, counsel for
the General Counsel, by telephone, advised the Respon-
dent that unless it filed an answer, a motion for default
judgment would be filed. Further, by letter dated August
30, 2004, the Regional Director notified the Respondent
that unless it filed an answer by September 7, 2004, a
motion for default judgment would be filed. The Re-
spondent has not filed an answer to the July 30, 2004
new consolidated complaint.
On September 16, 2004, the General Counsel filed a
Motion for Default Judgment with the Board. On Sep-
tember 17, 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 new consolidated complaint af-
firmatively stated that unless an answer was filed by Au-
gust 13, 2004, all the allegations in the consolidated
complaint could be considered admitted. Further, as set
forth above, the undisputed allegations in the General
Counsel’s motion disclose that the Region, by telephone
on August 25, 2004, and by letter dated August 30, 2004,
advised the Respondent that unless it filed an answer, a
motion for default judgment would be filed. As stated
above, however, the Respondent has failed to file an an-
swer to the new consolidated 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, a Texas corpora-
tion with an office and place of business in Dickinson,
Texas, has been engaged in business as an electrical con-
tractor.
During the 12 months preceding issuance of the July
30, 2004 complaint, the Respondent, in conducting its
business operations described above, performed services
valued in excess of $50,000 for Walgreen Co., an entity
directly engaged in interstate commerce.
We find that the Respondent is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
of the Act, and that International Brotherhood of Electrical
Workers, Local Union 479 a/w International Brotherhood
of Electrical Workers, AFL–CIO is a labor organization
within the meaning 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 or agents of the
Respondent within the meaning of Section 2(13) of the
Act:
Sitman Wainright, Jr. President
Larry Hogue Journeyman Foreman
In about July 2003, the exact date unknown, the Re-
spondent, by Larry Hogue, at the Walgreen’s Lumberton,
Texas jobsite, interrogated an employee about his union
membership, activities, and sympathies.
On about July 14, 2003, the Respondent’s employee,
Michael Sowell, concertedly complained to the Respon-
dent regarding wages, hours, and working conditions of
the Respondent’s employees by demanding a morning
and afternoon break.
On about July 16, 2003, the Respondent discharged
Sowell.
The Respondent discharged Sowell because Sowell
concertedly demanded a morning and afternoon break,
and because he formed, joined, or assisted the Union, and
engaged in other concerted activities, and to discourage
employees from engaging in these activities.
CONCLUSION OF LAW
By the conduct described above, the Respondent has
interfered with, restrained, and coerced employees in the
exercise of the rights guaranteed them by Section 7 of the
Act, in violation of Section 8(a)(1) of the Act. In addi-
tion, by discharging Michael Sowell, the Respondent has
discriminated in regard to the hire or tenure or terms and
conditions of employment of its employees, thereby dis-
couraging membership in a labor organization, in viola-
tion of Section 8(a)(3) of the Act. The Respondent’s
unfair labor practices affect commerce within the mean-
ing 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)(1) and
(3) by discharging Michael Sowell, we shall order the
Respondent 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 and privileges previously enjoyed, and to
make him whole for any loss of earnings and other bene-
fits 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).1 The Respondent shall also be required to
remove from its files all references to the unlawful dis-
charge of Michael Sowell, 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, Vortex Electrical Systems, Inc., Dickinson,
Texas, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Interrogating employees about their union mem-
bership, activities, and sympathies.
(b) Discharging employees because of their union 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
Michael Sowell 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.
(b) Make Michael Sowell whole for any loss of earn-
ings and other benefits suffered as a result of his unlaw-
ful 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
Michael Sowell, and 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.
(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

1 It appears that the Respondent has already paid Sowell a portion of
the backpay due under the settlement agreement. This shall be taken
into account in the compliance stage of this proceeding.
VORTEX ELECTRICAL SYSTEMS 3
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 Dickinson, Texas, copies of the attached
notice marked “Appendix.”2 Copies of the notice, on
forms provided by the Regional Director for Region 16,
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, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate 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 July 14, 2003.
(f) 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

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.”
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 employees about their union
membership, activities, and sympathies.
WE WILL NOT discharge employees because of their
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 of the act.
WE WILL, within 14 days from the date of the Board’s
Order, offer Michael Sowell 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.
WE WILL make Michael Sowell whole for any loss of
earnings and other benefits resulting from his unlawful
dischage, 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 Michael Sowell, 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.
VORTEX ELECTRICAL SYSTEMS, INC.