SPCA in Cattaraugus County, Inc.

National Labor Relations Board - Board Decisions

Feb 22, 2013

359 NLRB No. 68 (N.L.R.B. 2013)

359 NLRB No. 68
NOTICE: This opinion is subject to formal revision before publication in the
Board 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.
SPCA in Cattaraugus County, Inc. and Linda Vane.
Case 03–CA–090311
February 22, 2013
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS GRIFFIN
AND BLOCK
The Acting 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 filed
by Linda Vane on October 1, 2012, the Acting General
Counsel issued a complaint and notice of hearing on No-
vember 30, 2012, against SPCA in Cattaraugus County,
Inc. (the Respondent), alleging that it has violated Sec-
tion 8(a)(1) of the National Labor Relations Act. The
Respondent failed to file an answer.
On December 31, 2012, the Acting General Counsel
filed a Motion for Default Judgment with the Board.
Thereafter, on January 2, 2013, 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 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 December 14,
2012, 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 Acting
General Counsel’s motion disclose that the Region, by
letter and email dated December 18, 2012, notified the
Respondent that unless an answer were received by the
extended due date of December 26, 2012, a motion for
default judgment would be filed. In addition, on Decem-
ber 18, 2012, the Acting General Counsel emailed the
Respondent an additional copy of the complaint. Never-
theless, the Respondent failed to file an answer.
In the absence of good cause being shown for the fail-
ure to file an answer, we grant the Acting General Coun-
sel’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 not-for-profit
corporation with an office and place of business at 2944
Route 16, Olean, New York (the Respondent’s facility),
has operated an animal shelter and provided animal con-
trol to municipalities. In conducting its operations dur-
ing the calendar year ending December 31, 2011, the
Respondent derived gross revenues in excess of
$250,000 and provided services valued in excess of
$5000 for the City of Olean, New York, and the Town of
Olean, New York, enterprises directly engaged in inter-
state commerce.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times, Kelly Chaffee has been a mem-
ber of the Respondent’s board of directors, and has been
a supervisor of the Respondent within the meaning of
Section 2(11) of the Act, and an agent of the Respondent
within the meaning of Section 2(13) of the Act.
At all material times, the following individuals held
the positions set forth opposite their respective names,
and have been agents of the Respondent within the
meaning of Section 2(13) of the Act:
Kristen McDonald Chair, Board of Directors
Regina DeFeo Vice Chair, Board of Directors
Tina Wedge Member, Board of Directors
(From May to about August
2012)
Since about April 7, 2012, the Respondent has main-
tained a confidentiality policy that provides in part that:
It is crucial to the Organization that Employees and
Board Members do not publicly criticize, condemn or
degrade other SPCA Board Members, other SPCA
Employees, or SPCA policies.
About June 9, 2012, the Respondent’s employee,
Linda Vane, concertedly complained to the Respondent
regarding the wages, hours, and working conditions of
the Respondent’s employees by demanding that employ-
ees receive their paychecks.
About June 9, 10, and 15, 2012, by electronic mail,
Vane concertedly complained to the Respondent regard-
ing the wages, hours, and working conditions of the Re-
spondent’s employees by demanding that employees
receive their paychecks.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
About June 15, 2012, the Respondent removed Vane
from the position of medical attendant.
About June 17, 2012, the Respondent, by letter, threat-
ened Vane with discharge if she engaged in protected
concerted activities.
About June 25, 2012, the Respondent discharged
Vane.
The Respondent engaged in the conduct described
above because Vane engaged in the conduct described,
and to discourage employees from engaging in these or
other concerted activities.
CONCLUSION OF LAW
By the conduct described above, the Respondent has
been interfering with, restraining, and coercing employ-
ees in the exercise of the rights guaranteed them by Sec-
tion 7 of the Act in violation of Section 8(a)(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 cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act. Specifically, having
found that the Respondent has violated Section 8(a)(1) of
the Act by maintaining an overly broad confidentiality
policy prohibiting employees from publicly criticizing,
condemning, or degrading SPCA Board Members, em-
ployees, or company policies, we shall order the Respon-
dent to rescind the rule and notify its employees in writ-
ing that the rule is no longer in force. Further, having
found that the Respondent violated Section 8(a)(1) of the
Act by removing Linda Vane from the position of medi-
cal attendant and discharging her because she engaged in
protected concerted activities and to discourage employ-
ees from engaging in these or other concerted activities,
we shall order the Respondent to offer Vane full rein-
statement to her former job as a medical attendant or, if
that job no longer exists, to a substantially equivalent
position, without prejudice to her seniority or any other
rights or privileges previously enjoyed and to make Vane
whole for any loss of earnings and other benefits suffered
as a result of the Respondent’s unlawful actions against
her. 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), compounded daily as prescribed in
Kentucky River Medical Center, 356 NLRB No. 8
(2010).
Additionally, in accordance with our recent decision in
Latino Express, Inc., 359 NLRB No. 44 (2012), we shall
order the Respondent to compensate Vane for the ad-
verse tax consequences, if any, of receiving a lump-sum
backpay award and to file a report with the Social Secu-
rity Administration allocating the backpay award to the
appropriate calendar quarters for Vane.
Finally, the Respondent shall also be required to re-
move from its files any reference to the unlawful removal
of Vane from the position of medical attendant and her
unlawful discharge and to notify Vane in writing that this
has been done and that the unlawful removal and dis-
charge will not be used against her in any way.
ORDER
The National Labor Relations Board orders that the
Respondent, SPCA in Cattaraugus County, Inc., Olean,
New York, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Maintaining an overly broad confidentiality policy
that prohibits employees from publicly criticizing, con-
demning, or degrading SPCA Board Members, employ-
ees, or policies.
(b) Removing employees from their positions because
they engage in protected concerted activities, and to dis-
courage employees from engaging in these or other con-
certed activities.
(c) Threatening employees with discharge because
they engage in protected concerted activities, and to dis-
courage employees from engaging in these or other con-
certed activities.
(d) Discharging or otherwise discriminating against
employees because they engage in protected concerted
activities, and to discourage employees from engaging in
these or other concerted 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) Rescind the confidentiality policy prohibiting em-
ployees from publicly criticizing, condemning or degrad-
ing SPCA Board Members, employees or policies, and
notify employees in writing that this has been done and
the rule is no longer in force.
(b) Within 14 days from the date of this Order, offer
Linda Vane full reinstatement to her former job as a
medical attendant or, if that job no longer exists, to a
substantially equivalent position, without prejudice to her
seniority or any other rights or privileges previously en-
joyed.
(c) Make Linda Vane whole for any loss of earnings
and other benefits suffered as a result of the discrimina-
SPCA IN CATTARAUGUS COUNTY 3
tion against her, in the manner set forth in the remedy
section of this decision.
(d) Compensate Linda Vane for the adverse tax conse-
quences, if any, of receiving a lump-sum backpay award,
and file a report with the Social Security Administration
allocating the backpay award to the appropriate calendar
quarters.
(e) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful removal of
Linda Vane from the position of medical attendant and
her unlawful discharge and, within 3 days thereafter,
notify her in writing that this has been done and that the
unlawful discrimination will not be used against her in
any way.
(f) 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 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.
(g) Within 14 days after service by the Region, post at
its facility in Olean, New York, copies of the attached
notice marked “Appendix.”1 Copies of the notice, on
forms provided by the Acting Regional Director for Re-
gion 3, after being signed by the Respondent’s author-
ized 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. 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 other electronic means, if the Respondent
customarily communicates with its employees by such
means. 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
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 June 15, 2012.
(h) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-

1 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.”
sponsible 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, 2013
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Richard F. Griffin, Jr., Member
______________________________________
Sharon Block, 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 maintain an overbroad confidentiality
policy that prohibits you from publicly criticizing, con-
demning, or degrading SPCA Board Members, employ-
ees, or policies.
WE WILL NOT remove you from your position because
you engage in protected concerted activities, or to dis-
courage employees from engaging in these or other con-
certed activities.
WE WILL NOT threaten you with discharge because you
engage in protected concerted activities, or to discourage
employees from engaging in these or other concerted
activities.
WE WILL NOT discharge or otherwise discriminate
against you because you engage in protected concerted
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
activities, or to discourage employees from engaging in
these or other concerted activities.
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 rescind our overbroad confidentiality policy
that prohibits you from publicly criticizing, condemning,
or degrading SPCA Board Members, employees, or poli-
cies.
WE WILL, within 14 days from the date of the Board’s
Order, offer Linda Vane full reinstatement to her former
job as a medical attendant or, if that job no longer exists,
to a substantially equivalent position, without prejudice
to her seniority or any other rights or privileges previ-
ously enjoyed.
WE WILL make Linda Vane whole for any loss of earn-
ings and other benefits suffered as a result of the dis-
crimination against her, with interest.
WE WILL compensate Linda Vane for the adverse tax
consequences, if any, of receiving a lump-sum backpay
award, and file a report with the Social Security Admini-
stration allocating the backpay award to the appropriate
calendar quarters for her.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful removal of Linda Vane from the position of medical
attendant and her unlawful discharge, and WE WILL,
within 3 days thereafter, notify Linda Vane in writing
that this has been done and that the unlawful discrimina-
tion will not be used against her in any way.
SPCA in Cattaraugus County, Inc.