Wilkett Enterprises, LLC

National Labor Relations Board - Board Decisions

Dec 31, 2008

353 N.L.R.B. 657 (N.L.R.B. 2008)

353 NLRB No. 72
Wilkett Enterprises, LLC and International Associa-
tion of Bridge, Structural, Ornamental and Re-
inforcing Iron Workers Local 769, AFL–CIO.
Cases 9–CA–44279, 9–CA–44280, and 9–CA–
44281
December 31, 2008
DECISION AND ORDER
BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN
The General Counsel seeks summary judgment in this
case pursuant to the terms of a settlement agreement.
Upon charges filed by the Union, International Associa-
tion of Bridge, Structural, Ornamental and Reinforcing
Iron Workers Local 769, AFL–CIO, on March 19, 2008,
the General Counsel issued the consolidated complaint
on June 25, 2008, against Wilkett Enterprises, LLC, the
Respondent. The consolidated complaint alleged that the
Respondent violated Section 8(a)(3) and (1) of the Act.
Subsequently, the Respondent and the Union entered
into an informal settlement agreement, which was ap-
proved by the Regional Director for Region 9 on August
8, 2008. Among other things, the settlement agreement
required the Respondent to (1) post a notice to employ-
ees regarding the complaint allegations, and (2) make
whole four employees by paying them the amounts set
forth in the settlement agreement over a 4-month period
as outlined in a schedule of payments.1 The settlement
agreement also contained the following provision:
CHARGED PARTY’S FAILURE TO COMPLY—
The Charged Party agrees that in case of non-
compliance with any of the terms of this Settlement
Agreement by the Charged Party, including but not
limited to, failure to make timely payments of moneys
as set forth above, and after 14 days notice from the
Regional Director of the National Labor Relations

1 Under the settlement agreement, the Respondent was to pay a total
amount of $7326 in backpay and $238.10 in interest in monthly in-
stallment payments on the 30th day of each month beginning in Sep-
tember 2008 and ending in December 2008, to the following employ-
ees: Jarrod Denney ($432 backpay and $14.04 interest); Justen Denney
($504 backpay and $16.38 interest); William Morgan ($355.50 backpay
and $11.56 interest); and Paul Sims ($540 backpay and $17.35 inter-
est). In addition, the settlement agreement provided that separate
checks be issued for backpay and interest, and for appropriate with-
holdings from the checks representing backpay.
Contrary to the figure in the settlement agreement, our calculations
reveal a total of $237.32 in interest, and we have corrected this arithme-
tic error in the order and notice. In addition, Justen Denney’s name is
spelled differently in the complaint and in the settlement agreement.
We have followed the spelling in the settlement agreement and in the
General Counsel’s memorandum in support of motion for summary
judgment. Similarly, William Morgan is listed as “William Morgan,
Jr.” in the complaint, but we have followed the designation in the set-
tlement agreement and the General Counsel’s memorandum.
Board of such non-compliance without remedy by the
Charged Party, the Regional Director may, upon the al-
legations of the charge(s) in the instant case(s) reissue
the complaint previously filed in the instant case(s).
Thereafter, the General Counsel may file a motion for
summary judgment with the Board on the allegations of
the just issued complaint concerning the violations of
the Act alleged therein. The Charged Party under-
stands and agrees that the allegations of the aforemen-
tioned complaint may be deemed to be true by the
Board, that it will not contest the validity of any such
allegations, and the Board may enter findings of fact,
conclusions of law, and an order on the allegations of
the aforementioned complaint. On receipt of said mo-
tion for summary judgment the Board shall issue an or-
der requiring the Charged Party to show cause why
said Motion of the General Counsel should not be
granted. The only issue that may be raised in response
to the Board’s Order to Show Cause is whether the
Charged Party defaulted upon the terms of this settle-
ment agreement. The Board may then, without neces-
sity of trial or any other proceeding, find all allegations
of the complaint to be true and make findings of fact
and conclusions of law consistent with those allega-
tions adverse to the Charged Party, on all issues raised
by the pleadings. The Board may then issue an order
providing a full remedy for the violations found as is
customary to remedy such violations, including, but not
limited to, the remedial provisions of the Settlement
Agreement. The parties further agree that the Board’s
order may be entered thereon ex parte and that, upon
application by the Board to the appropriate United
States Court of Appeals for enforcement of the Board’s
order, judgment may be entered thereon ex parte and
without opposition from the Charged Party.
By letter dated November 3, 2008, the compliance of-
ficer for Region 9 notified the Respondent that the Re-
gion did not receive any installment payment for Sep-
tember or October 2008 and that the Respondent was not
in compliance with the settlement agreement. The letter
also stated that unless the Respondent complied with the
terms of the settlement agreement by November 17,
2008, the complaint would be reissued, a motion for
summary judgment would be filed, and all of the allega-
tions of the complaint would be deemed to be admitted
as true. The Respondent failed to comply. Accordingly,
pursuant to the terms of the noncompliance provisions of
the settlement agreement, the Regional Director reissued
the consolidated complaint on November 24, 2008.
On December 5, 2008, the General Counsel filed a
Motion for Summary Judgment with the Board. Thereaf-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
ter, on December 10, 2008, 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.
Ruling on Motion for Summary Judgment2
According to the uncontroverted allegations in the Mo-
tion for Summary Judgment, the Respondent has failed
to comply with the terms of the settlement agreement by
failing to pay the agreed-upon installment payments.
Consequently, pursuant to the noncompliance provisions
of the settlement agreement set forth above, we find that
the allegations in the reissued consolidated complaint are
true.3 Accordingly, we grant the General Counsel’s Mo-
tion for Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a corporation,
has been engaged in the construction industry as a gen-
eral contractor from its Jackson, Ohio location.
During the 12-month period preceding issuance of the
complaint, the Respondent, in conducting its operations
described above, purchased and received at its Jackson,
Ohio facility goods valued in excess of $50,000 directly
from points located outside the State of Ohio.
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 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:
Greg Wilkett - Owner
Kevin Napper - Business Manager
Rick Parsons - Project Lead

2 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Schaumber and Member Liebman constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
3 See U-Bee, Ltd., 315 NLRB 667 (1994).
1. About February 11, 2008, the Respondent, by Kevin
Napper, at its Jackson, Ohio facility, in a Monday morn-
ing staff meeting, threatened employees by telling them
that the Respondent would close its facility because of
their union activities.
2. About February 28, 2008, the Respondent, by Rick
Parsons, at its Jackson, Ohio facility, threw away em-
ployees’ union literature.
3. About March 10, 2008, the Respondent converted
employees David Sech, Troy Stewart, and Mark Sey-
mour from hourly positions to salaried positions.
4. About March 10, 2008, the Respondent terminated
hourly employees Jarrod Denney, Justen Denney, Matt
Mahley, William Morgan, Paul Sims, and Scott Sims and
offered them work as subcontractors.
5. The Respondent engaged in the conduct described
above in paragraphs 3 and 4 because the named employ-
ees of the Respondent formed, joined, or assisted the
Union and engaged in concerted activities, and to dis-
courage employees from engaging in these activities.
CONCLUSIONS OF LAW
1. By the conduct described above in section II, para-
graphs 1-2, the Respondent has been interfering with,
restraining and coercing employees in the exercise of
their rights guaranteed in Section 7 of the Act, in viola-
tion of Section 8(a)(1) of the Act.
2. By the conduct described above in section II, para-
graphs 3–5, the Respondent has been discriminating in
regard to the hire or tenure or terms or conditions of em-
ployment of its employees, thereby discouraging mem-
bership in a labor organization, in violation of Section
8(a)(3) of the Act.
3. The Respondent’s unfair labor practices 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, as requested by counsel
for the General Counsel. Specifically, the Respondent
shall comply with the unmet terms of the settlement a-
greement approved by the Regional Director for Region
9 on August 8, 2008, by paying to the discriminatees the
backpay and interest owed under the settlement agree-
ment. In limiting our affirmative remedy to the backpay
and interest owed under the settlement agreement, we
note that the General Counsel is empowered under the
default provisions of the settlement agreement to seek
“full remedy for the violations found as is customary to
remedy such violations,” including instatement, full
WILKETT ENTERPRISES, LLC 3
backpay, and expungement. However, in his Motion for
Summary Judgment, the General Counsel has not sought
such additional remedies and we will not, sua sponte,
include them within this remedy.4
ORDER
The National Labor Relations Board orders that the
Respondent, Wilkett Enterprises, LLC, Jackson, Ohio, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening employees by telling them that it
would close its facility because of their union activities.
(b) Throwing away employees’ union literature.
(c) Converting employees from hourly positions to
salaried positions because of their union or concerted
activities or to discourage employees from engaging in
these activities.
(d) Terminating employees and offering them work as
subcontractors because of their union or concerted activi-
ties or to discourage employees from engaging in these
activities.
(e) 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) Remit $7326 in backpay plus $237.32 in interest to
Region 9 of the National Labor Relations Board to be
disbursed to Jarrod Denney, Justen Denney, William
Morgan, and Paul Sims, in accordance with the terms of
the settlement agreement approved by the Regional Di-
rector on August 8, 2008.
(b) Within 14 days after service by the Region, post at
its facility in Jackson, Ohio, copies of the attached notice
marked “Appendix.”5 Copies of the notice, on forms
provided by the Regional Director for Region 9, 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. Reasonable steps shall be taken by the Respon-
dent to ensure that the notices are not altered, defaced or
covered by any other material. In the event that, during

4 In his Motion, the General Counsel requests that the Board grant
the Motion and relief requested, “including the issuance of an order
requiring Respondent to make the named individuals whole in the
manner provided for in the Agreement and as set forth in detail below,”
listing the total amounts of backpay and interest due pursuant to the
four installment payments provided for in the settlement agreement.
5 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 pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since February 11, 2008.
(c) 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 com-
ply.
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 threaten employees by telling them that
we will close our facility because of their union activi-
ties.
WE WILL NOT throw away employees’ union literature.
WE WILL NOT convert employees from hourly positions
to salaried positions because of their union or concerted
activities or to discourage employees from engaging in
these activities.
WE WILL NOT terminate employees and offer them
work as subcontractors because of their union or con-
certed activities or to discourage employees from engag-
ing 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 pay $7326 in backpay plus $237.32 in inter-
est to Region 9 of the National Labor Relations Board to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
be disbursed to Jarrod Denney, Justen Denney, William
Morgan, and Paul Sims, in accordance with the terms of
the settlement agreement approved by the Regional Di-
rector on August 8, 2008.
WILKETT ENTERPRISES, LLC