Midwestern Video Personnel, Inc.

National Labor Relations Board - Board Decisions

Feb 22, 2016

363 NLRB No. 120 (N.L.R.B. 2016)

363 NLRB No. 120
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.
Midwestern Video Personnel, Inc. and Michael
Tatomir. Case 07–CA–148107
February 22, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND MCFERRAN
The General Counsel seeks a default judgment in this
case pursuant to the terms of an informal settlement
agreement. Upon a charge filed by Michael Tatomir on
March 12, 2015, the General Counsel issued the com-
plaint on July 31, 2015, against Midwestern Video Per-
sonnel, Inc. (the Respondent) alleging that the Respond-
ent violated Section 8(a)(3) and (1) of the Act by dis-
charging Tatomir. The Respondent filed an answer to
the complaint.
Subsequently, the Respondent and Tatomir entered in-
to an informal settlement agreement which was approved
by the Regional Director for Region 7 on October 9,
2015. Among other things, the settlement agreement
required the Respondent to: (1) offer Tatomir immediate
and full reinstatement to his former job, or if that job no
longer exists, to a substantially equivalent position, with-
out prejudice to his seniority or any other rights and/or
privileges previously enjoyed; (2) make Tatomir whole
by paying him $5000 at the time of signing the settle-
ment agreement, and the balance of $9,350 as well as
$110.53 in interest within 7 days from the approval of
the settlement agreement by the Regional Director; (3)
expunge from its files any reference to Tatomir’s dis-
charge, and notify Tatomir in writing that this has been
done and notify Fox Sports Detroit in writing that the
Respondent has reinstated Tatomir; and (4) post and
email a notice to employees and mail a copy of the notice
to employees for whom the Employer does not have a
valid email address and who were employed at any time
since January 1, 2015.
The settlement agreement also contained the following
provision:
The Charged Party agrees that in case of non-
compliance with any of the terms of this Settlement
Agreement by the Charged Party, and after 7 days no-
tice from the Regional Director of the National Labor
Relations Board of such non-compliance without rem-
edy by the Charged Party, the Regional Director will
reissue the complaint previously issued on July 31,
2015, in the instant case(s). Thereafter, the General
Counsel may file a motion for default judgment with
the Board on the allegations of the complaint. The
Charged Party understands and agrees that the allega-
tions of the aforementioned complaint will be deemed
admitted and its Answer to such complaint will be con-
sidered withdrawn. The only issue that may be raised
before the Board is whether the Charged Party default-
ed on the terms of this Settlement Agreement. The
Board may then, without necessity 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 allegations 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 appropriate to
remedy such violations. The parties further agree that a
U.S. Court of Appeals Judgment may be entered en-
forcing the Board Order ex parte, after service or at-
tempted service upon Charged Party/Respondent at the
last address provided to the General Counsel.
By letter dated October 14, 2015, the Region sent the
Respondent a copy of the approved settlement agreement
and advised it to take the steps necessary to comply. By
letter dated October 22, 2015, the Region notified the
Respondent that it had not complied with the settlement
agreement by failing to pay the balance of $9,350 in
wages and $110.53 in interest owed to Tatomir by Octo-
ber 16, 2015 (7 days after approval of the settlement
agreement by the Regional Director). The letter advised
the Respondent of its obligation to pay the total amount
owed within 7 days of the issuance of the October 22,
2015 letter, and that failure to do so could lead to the
reissuance of the complaint and the filing of a motion for
default judgment.
According to the uncontroverted assertions in the mo-
tion for default judgment, by telephone conversation with
the Region on October 26, 2015, the Respondent indicat-
ed that it had shut down its business and could not afford
to pay anything to Tatomir. The Respondent further stat-
ed that it would submit nothing further in this matter and
would not contest any remaining dispute. Again, the
Region warned the Respondent that its failure to pay the
amounts owed could result in the reissuance of the com-
plaint and the filing of a motion for default judgment.
The Respondent replied that it “cannot and will not” pay
anything more to Tatomir. Motion, p. 4.
Having received no further response, on December 1,
2015, the Regional Director issued a Complaint Based on
Breach of Affirmative Provisions of Settlement Agree-
ment (reissued complaint) and the General Counsel filed
a Motion for Default Judgment with the Board. On De-
cember 15, 2015, the Board issued an order transferring
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
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
According to the uncontroverted allegations in the mo-
tion for default judgment, the Respondent has failed to
comply with the terms of the settlement agreement by
failing to pay the balance of $9,350 in wages and
$110.53 in interest owed to Tatomir. Consequently, pur-
suant to the noncompliance provisions of the settlement
agreement set forth above, we find that the Respondent’s
answer to the original complaint has been withdrawn and
all of the allegations in the reissued complaint are true.1
Accordingly, 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 cor-
poration with an office and place of business in Spencer,
Ohio, and has been engaged in supplying video and au-
dio crews for sports broadcast television production.
In conducting its operations during the calendar year
ending December 31, 2014, the Respondent performed
services valued in excess of $50,000 in States other than
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 Local 58, International Brother-
hood of Electrical Workers (IBEW), AFL–CIO (the Un-
ion), is a labor organization within the meaning of Sec-
tion 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:
Charlyn Scroggins – Owner and President
Deborah Coch – Operation Manager
About March 14, 2014, the Respondent’s employee,
Michael Tatomir, concertedly complained to the Re-
spondent regarding the wages, hours, and working condi-
tions of the Respondent’s employees, by requesting that

1 See U-Bee, Ltd., 315 NLRB 667 (1994).
the Respondent seek the higher national wage rate from
FOX Sports Detroit for a Detroit Tigers game telecast
that was scheduled to be broadcasted nationally on a new
network, FOX Sports Detroit One.
About February 10, 2015, the Respondent discharged
Tatomir.
The Respondent discharged Tatomir because he en-
gaged in the conduct described above and to discourage
employees from engaging in these and other concerted
activities, and because Tatomir supported the Union.
CONCLUSION OF LAW
By the conduct described above, 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 organiza-
tion, in violation of Section 8(a)(3) and (1) of the Act.
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 take cer-
tain affirmative action designed to effectuate the policies
of the Act. Specifically, we shall order the Respondent
to comply with the unmet financial terms of the settle-
ment agreement approved by the Regional Director for
Region 7 on October 9, 2015.
Accordingly, we shall order the Respondent to make
Tatomir whole by payment of the remaining balance of
backpay as provided for in the settlement agreement in
the amount of $9,350 in wages and $110.53 in interest.
In addition, we shall order the Respondent to file a report
with the Social Security Administration allocating the
backpay award to the appropriate calendar quarters and
reimburse Tatomir for any additional Federal and State
income taxes that Tatomir may owe as a consequence of
receiving a lump-sum backpay award in a calendar year
other than the year in which the income would have been
earned had the Act not been violated. Don Chavas, LLC
d/b/a Tortillas Don Chavas, 361 NLRB No. 10 (2014).
In limiting our affirmative remedies to those enumer-
ated above, we are mindful that the General Counsel is
empowered under the default provision of the settlement
agreement to seek “a full remedy for the violations found
as is appropriate to remedy such violations,” including
backpay beyond that specified in the agreement.2 How-
ever, in his Motion for Default Judgment, the General

2 As set forth above, the settlement agreement provided that, in case
of noncompliance, the Board could “issue an order providing a full
remedy for the violations found as is appropriate to remedy such viola-
tions.”
MIDWESTERN VIDEO PERSONNEL 3
Counsel has not sought such additional remedies and we
will not, sua sponte, include them.3
ORDER
The National Labor Relations Board orders that the
Respondent, Midwestern Video Personnel, Inc., Spencer,
Ohio, its officers, agents, successors, and assigns, shall
take the following affirmative action necessary to effec-
tuate the policies of the Act.
1. Remit $9,350 in wages and $110.53 in interest to
Region 7 of the National Labor Relations Board to be
disbursed to Michael Tatomir, in accordance with the
terms of the settlement agreement approved by the Re-
gional Director on October 9, 2015.
2. Compensate Michael Tatomir for the adverse tax
consequences, if any, of receiving lump-sum backpay
awards, and file a report with the Social Security Admin-

3 See, e.g., Benchmark Mechanical, Inc., 348 NLRB 576 (2006).
The General Counsel specifically requested in his motion for default
judgment here that the Board “order that the Respondent is responsible
for the backpay owed of $9,350.00 and interest in the amount of
$110.53, as well as such other relief deemed appropriate and neces-
sary.”
istration allocating the backpay award to the appropriate
calendar quarters for Tatomir.
3. Within 21 days after service by the Region, file
with the Regional Director for Region 7 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. February 22, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Philip A. Miscimarra, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD