Dynatech Specialty Services

National Labor Relations Board - Board DecisionsFeb 10, 2005

344 N.L.R.B. 16 (N.L.R.B. 2005)

344 NLRB No. 16 Dynatech Specialty Services, Inc. and International Association of Heat & Frost Insulators & Asbes- tos Workers, Local 86. Case 26â€“CAâ€“21827 February 10, 2005 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND SCHAUMBER 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 a charge and amended charges filed by the Union on August 19, 27, and Octo- ber 8, 2004, respectively, the General Counsel issued the complaint on October 25, 2004, against Dynatech Spe- cialty Services, Inc., the Respondent, alleging that it has violated Section 8(a)(1) and (3) of the Act.1 The Re- spondent failed to file an answer. On November 23, 2004, the General Counsel filed a Motion for Default Judgment with the Board. On No- vember 29, 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. Ruling on Motion for Default Judgment Section 102.20 of the Boardâ€™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 affirmatively stated that unless an answer was filed by November 8, 2004, all the allegations in the complaint could be considered ad- mitted. Further, the undisputed allegations in the Gen- eral Counselâ€™s motion disclose that the Region, by letter dated November 9, 2004, notified the Respondent that unless an answer was received by November 15, 2004, a motion for default judgment would be filed. In the absence of good cause being shown for the fail- ure to file a timely answer, we grant the General Coun- sel's motion for default judgment. On the entire record, the Board makes the following 1 The complaint was sent to the Respondent at the Respondentâ€™s regular place of business by certified mail. The Respondent, however, did not claim this item. It is well settled that a respondentâ€™s failure or refusal to accept certified mail or to provide for appropriate service cannot serve to defeat the purposes of the Act. See, e.g., I.C.E. Elec- tric, Inc., 339 NLRB 247 fn. 2 (2003), and cases cited there. In any event, the complaint was also served by certified mail on the Respon- dentâ€™s owner, Nancy Collier, and the General Counsel submitted a copy of the postal return receipt card. FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a corporation with an office and place of business in Gordonsville, Tennessee (the Respondentâ€™s facility), has been engaged in the demolition and installation of insulation at various jobsites, including Arnold Air Force Base in Tullahoma, Tennessee (the Arnold AFB jobsite) and Rhodia Foods Specialty Phosphates in Nashville, Tennessee (the Rho- dia jobsite). During the 12-month period ending September 30, 2004, the Respondent, in conducting its business opera- tions described above, has been engaged in installing insulation for the United States Air Force at its Arnold AFB jobsite valued in excess of $50,000. Based on these business operations, the Respondent has a substantial impact on the national defense of the United States. During the 12-month period ending September 30, 2004, the Respondent, in conducting its business opera- tions described above, purchased and received at the Re- spondentâ€™s facility goods valued in excess of $50,000 directly from points located outside the State of Tennes- see and sold and shipped from its facility goods valued in excess of $50,000 directly to points located outside the State of Tennessee. 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 International Association of Heat & Frost Insulators & Asbestos Workers, Local 86 (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: Mike Collier Owner Nancy Collier Owner Brian Collier Supervisor Mark Collier Supervisor The Respondent, by Mike Collier, on or about July 29, 2004, at a restaurant in the Gordonsville, Tennessee area, interrogated a job applicant about whether he was a un- ion member and threatened a job applicant that he would not hire applicants who supported a union. The Respondent, by Mark Collier, on or about August 12, 2004, at the Rhodia jobsite, interrogated a job appli- cant about his union sympathies. The Respondent, by Brian Collier: DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2 (a) On or about July 30, 2004, at the Arnold AFB jobsite, interrogated an employee about his union sympathies. (b) On or about August 9, 2004, at the Rhodia jobsite, instructed an employee to report on the un- ion activities of other employees, and implied that an employee who supported the Union would be dis- charged. (c) On or about August 10, 2004, at the Rhodia jobsite, (1) instructed an employee to inform him if other employees discussed the Union at the jobsite; (2) orally promulgated a rule prohibiting em- ployees from talking about the Union while at the jobsite; (3) informed employees on two occasions that talking about the Union at any time was prohibited; (4) informed an employee that he was being ter- minated because of his union activities; (5) threatened an employee with retaliation be- cause the employee engaged in union activities; (6) told employees that another employee was discharged because of his union activities; (7) informed an employee not to speak to union members at any time; (8) requested employees to report union activity at the jobsite to management; (9) interrogated a job applicant about his union sympathies; (10) twice impliedly threatened employees with physical violence because of union activities; (11) told an employee that he was going to dis- charge an employee because of his union acitivities; (12) threatened an employee with retaliation if the employee engaged in union activities. (d) On or about August 13, 2004, at the Rhodia jobsite, informed employees that another employee would be removed from the jobsite because of his union activities; threatened an employee that if he returned to the jobsite he would be arrested because of his union activities; and informed an employee that he was being terminated because of his union activities. On or about August 10, 2004, the Respondent dis- charged its employee Roger Cathey. On or about August 13, 2004, the Respondent dis- charged its employees Reynold Paul Carey and Tim Clapper. The Respondent discharged employees Cathey, Carey, and Clapper because they joined and assisted the Union and engaged in concerted activities, and to discourage employees from engaging in these activities. CONCLUSIONS OF LAW 1. By the interrogations, threats, and other statements to employees at the Arnold AFB and Rhodia jobsites be- tween July 29 and August 13, 2004, set forth above, the Respondent has interfered with, restrained, and coerced employees in the exercise of the rights guaranteed by Sec- tion 7 of the Act, in violation of Section 8(a)(1) of the Act. 2. By discharging employees Roger Cathey, Reynold Paul Carey, and Tim Clapper because they joined and assisted the Union and engaged in concerted activities, the Respondent has discriminated in regard to the hire or ten- ure or terms and conditions of employment of its employ- ees, thereby discouraging membership in a labor organi- zation, in violation of Section 8(a)(3) and (1) of the Act. The Respondentâ€™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. Specifically, having found that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging Roger Cathey, Reynold Paul Carey, and Tim Clapper, we shall order the Respondent to offer them full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent po- sitions, without prejudice to their seniority or any other rights and privileges previously enjoyed. We also shall order the Respondent to make Cathey, Carey, and Clapper whole for any loss of earnings and other benefits suffered as a result of the discrimination against them. 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 also be required to remove from its files all references to the unlawful discharges of Cathey, Carey, and Clapper, and to notify them in writing that this has been done and that the discharges will not be used against them in any way. ORDER The National Labor Relations Board orders that the Respondent, Dynatech Speciality Services, Inc., Gor- donsville, Tennessee, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Threatening employees with discharge, retaliation, or physical violence because they support the Interna- tional Association of Heat & Frost Insulators & Asbestos DYNATECH SPECIALTY SERVICES 3 Workers, Local 86, or any other labor organization, and engage in union activities. (b) Interrogating job applicants about their union membership and sympathies. (c) Interrogating employees about their union member- ship and sympathies. (d) Threatening job applicants by telling them that it would not hire applicants who supported a union. (e) Instructing employees to report on the union activi- ties of other employees or to inform it if other employees discuss the Union at the jobsite. (f) Informing employees that they or other employees are being terminated because of their union activities. (g) Promulgating a rule prohibiting employees from talking about the Union while at the jobsite. (h) Telling employees that talking about the Union at any time is prohibited or that they are not to speak to union members at any time. (i) Informing employees that another employee would be removed from the jobsite because of his union activi- ties. (j) Threatening employees that if they return to the jobsite they would be arrested because of their union activities. (k) Discharging employees because they join or assist a union, or engage in concerted activities. (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 Roger Cathey, Reynold Paul Carey, and Tim Clapper full reinstatement to their former positions or, if those posi- tions no longer exist, to substantially equivalent posi- tions, without prejudice to their seniority or any other rights and privileges previously enjoyed. (b) Make Roger Cathey, Reynold Paul Carey, and Tim Clapper whole for any loss of earnings and other benefits suffered as a result of their unlawful discharges, 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 discharges of Roger Cathey, Reynold Paul Carey, and Tim Clapper, and within 3 days thereafter, notify them in writing that this has been done, and that the unlawful discharges will not be used against them 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 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 Gordonsville, Tennessee, copies of the at- tached notice marked â€œAppendix.â€2 Copies of the notice, on forms provided by the Regional Director for Region 26, after being signed by the Respondentâ€™s authorized representative, 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 Respondent to ensure that the notices are not al- tered, 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 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 29, 2004. (f) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsi- ble official on a form provided by the Region attesting 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 violated 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 benefit and protection Choose not to engage in any of these protected activities. WE WILL NOT threaten you with discharge, retaliation, or physical violence because you support the Interna- tional Association of Heat & Frost Insulators & Asbestos 2 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading â€œPosted by Order of the Na- tional Labor Relations Boardâ€ shall read â€œPosted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.â€ DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4 Workers, Local 86, or any other labor organization, and engage in union activities. WE WILL NOT interrogate job applicants about your un- ion membership and sympathies. WE WILL NOT interrogate you about their union mem- bership and sympathies. WE WILL NOT threaten job applicants by telling them that we will not hire applicants who supported a union. WE WILL NOT instruct you to report on the union ac- tivities of other employees or to inform us if other em- ployees discuss the Union at the jobsite. WE WILL NOT inform you that you or other employees are being terminated because of their union activities. WE WILL NOT promulgate a rule prohibiting you from talking about the union while at the jobsite. WE WILL NOT tell you that talking about the Union at any time is prohibited or that you are not to speak to un- ion members at any time. WE WILL NOT inform you that another employee would be removed from the jobsite because of his union activi- ties. WE WILL NOT threaten you that if you return to the job- site you would be arrested because of your union activi- ties. WE WILL NOT discharge you because you join or assist a union, or engage in 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 7 of the Act. WE WILL, within 14 days from the date of the Boardâ€™s Order, offer Roger Cathey, Reynold Paul Carey, and Tim Clapper full reinstatement to their former positions or, if those positions no longer exist, to substantially equiva- lent positions, without prejudice to their seniority or any other rights and privileges previously enjoyed. WE WILL make Roger Cathey, Reynold Paul Carey, and Tim Clapper whole for any loss of earnings and other benefits suffered as a result of their unlawful dis- charges, with interest. WE WILL, within 14 days from the date of the Boardâ€™s Order, remove from our files all references to the unlaw- ful discharges of Roger Cathey, Reynold Paul Carey, and Tim Clapper, and, WE WILL, within 3 days thereafter, notify them in writing that this has been done, and that the unlawful discharges will not be used against them in any way. DYNATECH SPECIALTY SERVICES, INC.