W.B. MASON CO., INC.

National Labor Relations Board - Board Decisions

Apr 20, 2017

365 NLRB No. 62 (N.L.R.B. 2017)

365 NLRB No. 62
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
W.B. Mason Co., Inc. and International Brotherhood
of Teamsters, Local 25. Case 01–CA–180518
April 20, 2017
DECISION AND ORDER
BY ACTING CHAIRMAN MISCIMARRA AND MEMBERS
PEARCE AND MCFERRAN
The General Counsel seeks a default judgment in this
case on the ground that the Respondent failed to file an
answer to the complaint. Upon a charge filed by Interna-
tional Brotherhood of Teamsters, Local 25 (the Union),
on July 20, 2016, the General Counsel issued a complaint
and notice of hearing on October 31, 2016, against W. B.
Mason Co., Inc. (the Respondent), alleging that it has
violated Section 8(a)(1), (3), and (4) of the Act. The
Respondent failed to file an answer.
On February 3, 2017, the General Counsel filed with
the National Labor Relations Board a Motion to Transfer
Proceeding to the Board and for Default Judgment.
Thereafter, on February 6, 2017, the Board issued an
order transferring the proceeding to the Board and a No-
tice to Show Cause why the motion should not be grant-
ed. The Respondent filed no response. The allegations
in the motion are therefore undisputed.
On the entire record, the National Labor Relations
Board makes the following
Ruling on Motion for Default Judgment
Section 102.20 of the Board’s Rules and Regulations
provides that the allegations in a 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 affirmatively stated
that unless an answer was received by November 14,
2016, the Board may find, pursuant to a motion for de-
fault judgment, that the allegations in the complaint are
true. Further, the undisputed allegations in the General
Counsel’s motion disclose that the Region, by letter dat-
ed January 13, 2017, advised the Respondent that unless
an answer was received by January 20, 2017, a motion
for default judgment would be filed. Nevertheless, the
Respondent failed to file an answer.
In the absence of good cause being shown for the fail-
ure to file an answer, we deem the allegations of the con-
solidated complaint to be admitted as true, and 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 has been a Mas-
sachusetts corporation with its principal place of business
located in Brockton, Massachusetts (the Brockton facili-
ty), and place of business in South Boston, Massachu-
setts (the South Boston facility), where it is engaged in
the sale and delivery of office supplies and related prod-
ucts and services.
Annually, in conducting its operations described
above, the Respondent sells and ships from the Brockton
facility goods valued in excess of $50,000 directly to
points outside the Commonwealth of Massachusetts.
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
At all material times, the following individuals have
held the positions opposite their 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:
Tim Hallinan Human Resources Manager
Carlos DeAndrade South Boston Branch Man-
ager
The following events occurred, giving rise to this proceed-
ing.
1. Since about June 13, 2016, the Respondent, by Car-
los DeAndrade and Tim Hallinan, has failed to imple-
ment a promised wage increase to its employee Kenny
DeAndrade.
2. The Respondent engaged in the conduct described
above because Kenny DeAndrade and other employees
of the Respondent formed, joined, and assisted the Union
and engaged in concerted activities, and to discourage
employees from engaging in these activities.
3. The Respondent engaged in the conduct described
above for the further reason that Kenny DeAndrade co-
operated in the Board investigations, and testified at a
Board hearing, in Cases 01–CA–161120, et al.
CONCLUSIONS OF LAW
1. By the conduct described above in paragraphs 1 and
2, the Respondent has been discriminating in regard to
the hire or tenure or terms or 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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
2. By the conduct described above in paragraphs 1 and
3, the Respondent has been discriminating against em-
ployees for filing charges or giving testimony under the
Act in violation of Section 8(a)(4) and (1) of the Act.
3. The Respondent’s unfair labor practices described
above affect 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. Specifically, having
found that the Respondent violated Section 8(a)(1), (3),
and (4) by failing to implement a promised wage in-
crease to employee Kenny DeAndrade, we shall order it
to make him whole for any loss of earnings and other
benefits suffered as a result of the Respondent's unlawful
action against him.1
Backpay shall be computed in accordance with Ogle
Protection Service, 183 NLRB 682 (1970), enfd. 444
F.2d 502 (6th Cir. 1971), with interest as prescribed in
New Horizons, 283 NLRB 1173 (1987), compounded
daily as prescribed in Kentucky River Medical Center,
356 NLRB 6 (2010). Additionally, we shall order the
Respondent to compensate Kenny DeAndrade for any
adverse tax consequences of receiving lump-sum back-
pay awards and to file a report with the Regional Direc-
tor for Region 1 allocating backpay to the appropriate
calendar years, in accordance with AdvoServ of New Jer-
sey, Inc., 363 NLRB No. 143 (2016).
ORDER
The National Labor Relations Board orders that the
Respondent, W.B. Mason Co., Inc., South Boston, Mas-

1 The General Counsel has requested a notice-reading remedy. We
agree that this special remedy is appropriate to dispel the effects of the
Respondent’s unlawful conduct in this case and in related Cases 01–
CA–161120, et al., where the Respondent was found to have engaged
in multiple 8(a)(1), (3), and (5) violations, including, inter alia, interro-
gating employee Kenny DeAndrade (the discriminatee in this case),
granting benefits to employees and discharging employees in order to
discourage them from supporting the Union, and failing to recognize
and bargain with the Union and unilaterally granting a wage increase.
See HTH Corp., 356 NLRB 1397, 1404 (2011), enfd. 693 F.3d 1051
(9th Cir. 2012) (notice reading required because of serious and wide-
spread violations). This notice-reading remedy “serves as a minimal
acknowledgement of the obligations that have been imposed by law and
provides employees with some assurance that their rights under the Act
will be respected in the future.” Whitesell Corp., 357 NLRB 1119,
1123–1124 (2011); accord Homer D. Bronson Co., 349 NLRB 512, 515
(2007), enfd. mem. 273 Fed.Appx. 32 (2d Cir. 2008). Therefore, we
will require that the Respondent's branch manager, or, at the Respond-
ent's option, a Board agent in the branch manager’s presence, read the
remedial notice to the Respondent's employees.
sachusetts, its officers, agents, successors, and assigns
shall
1. Cease and desist from
(a) Failing to implement a promised wage increase to
an employee because he and other employees formed,
joined, and assisted the Union and engaged in concerted
activities, and to discourage employees from engaging in
these activities.
(b) Failing to implement a promised wage increase to
an employee because the employee participated in pro-
ceedings before the National Labor Relations Board.
(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) Make employee Kenny DeAndrade whole for any
loss of earnings and other benefits suffered as a result of
the discrimination against him, in the manner set forth in
the remedy section of this decision.
(b) Compensate Kenny DeAndrade for the adverse tax
consequences, if any, of receiving a lump-sum backpay
award, and file with the Regional Director for Region 1,
within 21 days of the date of the amount of backpay is
fixed, either by agreement or Board order, a report allo-
cating the backpay award to the appropriate calendar
years.
(c) 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 rec-
ords 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.
(d) Within 14 days after service by the Region, post at
its South Boston facility copies of the attached notice
marked “Appendix.”2 Copies of the notice, on forms
provided by the Regional Director for Region 1, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places, including
all places where notices to employees are customarily
posted. In addition to physical posting of paper notices,
notices shall be distributed electronically, such as by
email, posting on an intranet or an internet site, and/or

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.”
W. B. MASON CO., INC. 3
other electronic means, if the Respondent customarily
communicates with its employees by such means. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material. If the Respondent has gone out of
business or closed the facilities involved in these pro-
ceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employ-
ees and former employees employed by the Respondent
at any time since June 13, 2016.
(e) Within 14 days after service by the Region, hold a
meeting or meetings at its South Boston facility, sched-
uled to ensure the widest possible attendance, at which
the attached notice is to be read to the employees by
Branch Manager Carlos DeAndrade, or, at the Respond-
ent's option, by a Board agent in the presence of Carlos
DeAndrade.
(f) Within 21 days after service by the Region, file
with the Regional Director for Region 1 a sworn certifi-
cation 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. April 20, 2017
______________________________________
Philip A. Miscimarra, Acting Chairman
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, 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 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 fail to implement a promised wage in-
crease to an employee because he and other employees
formed, joined, and assisted the Union and engaged in
concerted activities, and to discourage employees from
engaging in these activities.
WE WILL NOT fail to implement a promised wage in-
crease to an employee because he participated in pro-
ceedings before the National Labor Relations Board.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL make employee Kenny DeAndrade whole for
any loss of earnings and other benefits suffered as a re-
sult of the discrimination against him, plus interest.
WE WILL compensate Kenny DeAndrade for the ad-
verse tax consequences, if any, of receiving a lump-sum
backpay award, and WE WILL file with the Regional Di-
rector for Region 1, within 21 days of the date of the
amount of backpay is fixed, either by agreement or
Board order, a report allocating the backpay to the ap-
propriate calendar years.
W.B. MASON CO., INC.
The Board’s decision can be found at
www.nlrb.gov/case/01–CA–180518 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor Re-
lations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940.