355 NLRB No. 36 (N.L.R.B. 2010)

Small Freys Children Center

National Labor Relations Board - Board DecisionsMay 26, 2010

355 NLRB No. 36 (N.L.R.B. 2010)

355 NLRB No. 36 1 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. Small Freys Children Center, Inc. and Heather Har- nish and Abby Smith and Brittany Ditzler. Cases 4–CA–37248, 4–CA–37249, and 4–CA– 37251 May 26, 2010 DECISION AND ORDER BY MEMBERS SCHAUMBER, BECKER, AND PEARCE The General Counsel seeks a default judgment in this case on the ground that the Respondent has failed to file an answer to the consolidated complaint. Upon charges and amended charges filed by Heather Harnish, Abby Smith, and Brittany Ditzler on December 28, 2009, and February 23, 2010, respectively, the General Counsel issued a consolidated complaint on March 5, 2010, against Small Freys Children Center, Inc., the Respon- dent, alleging that it has violated Section 8(a)(1) of the Act. The Respondent failed to file an answer. On March 31, 2010, the General Counsel filed a Mo- tion for Default Judgment with the Board. Thereafter, on April 2, 2010, 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. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. 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 consolidated complaint affirma- tively stated that unless an answer was received by March 19, 2010, the Board may find, pursuant to a mo- tion for default judgment, that the allegations in the con- solidated complaint are true. Further, the undisputed allegations in the General Counsel’s motion disclose that the Region, by letter dated March 22, 2010, notified the Respondent that unless an answer was received by March 29, 2010, a motion for default judgment would be filed. In the absence of good cause being shown for the fail- ure to file an answer, 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, a Pennsylvania corporation, has operated a daycare center at 45 Market Square, Manheim, Pennsylvania (the Center), and an after-school program at the H.C. Burgard Elementary School in Manheim Township. During the 12-month period preceding the issuance of the consolidated complaint, the Respondent, in conduct- ing its business operations described above, received gross revenues in excess of $250,000 and received subsi- dies from the Commonwealth of Pennsylvania and from the Federal government valued in excess of $3000, which entities are directly engaged in interstate of com- merce. 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, Barbara Frey and Alyssa Soule held the positions of president/director and assistant di- rector, respectively, 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. At all material times, Tracey Meyers has been the Re- spondent’s secretary and has been an agent of the Re- spondent within the meaning of Section 2(13) of the Act. The Respondent, by Barbara Frey, engaged in the fol- lowing conduct at the Center: (1) On about October 12, 2009: interrogated an em- ployee concerning the protected concerted activities of the employee and other employees; and threatened to discharge employees if they contacted Frey concerning late and short paychecks. (2) On about October 14, 2009, with Alyssa Soule: in- terrogated employees concerning the protected concerted activities of the employees and other employees; and threatened to sue employees for slander because they were engaging in protected concerted activities. (3) On about October 16, 2009, with Alyssa Soule: in- terrogated an employee concerning the protected con- certed activity of the employee and other employees; interrogated the employee concerning contacts with the “Department of Labor”; and gave the employee “a week” to consider being taken back as an employee, provided that employees would “disband” and cease talking to each other. (4) On about October 19, 2009, implemented a rule prohibiting employees from discussing employment is- sues or day care issues outside the workplace. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2 On about October 12, 2009, the Respondent’s employ- ees, including Heather Harnish, Abby Smith, and Brit- tany Ditzler, discussed activities they would consider to respond to the Respondent’s failure or refusal to give them timely and correct paychecks, including calling the Center to advise that they would not be reporting for work on October 13, 2009. On about October 12, 2009, the Respondent’s employ- ees, including Heather Harnish and Brittany Ditzler, but not Abby Smith (who was not scheduled to work on Oc- tober 13, 2009), called the Center advising that they would not be reporting for work on October 13, 2009. On about October 14, 2009, the Respondent dis- charged its employees Abby Smith and Brittany Ditzler. On about October 16, 2009, the Respondent dis- charged its employee Heather Harnish. The Respondent engaged in the conduct described above because Harnish, Smith, Ditzler, and other em- ployees engaged in the conduct referred to above, and to discourage employees from engaging in these or other concerted activities. CONCLUSION OF LAW By the conduct described above, the Respondent has interfered with, restrained, and coerced employees in the exercise of the rights guaranteed them in Section 7 of the Act, and has thereby engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and 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) by discharging Heather Harnish, Abby Smith, and Brittany Ditzler because they engaged in protected concerted ac- tivities, we shall order the Respondent to offer these em- ployees full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights and privileges previously enjoyed, and to make them 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).1 The Respondent shall also be required to re- 1 In the complaint, the General Counsel seeks interest computed on a compounded quarterly basis for any backpay or other monetary awards. Having duly considered the matter, we are not prepared at this time to deviate from our current practice of assessing simple interest. See, e.g., move from its files any and all references to the unlawful discharges of Harnish, Smith, and Ditzler, and to notify these employees in writing that this has been done and that the unlawful discharges will not be used against them in any way. ORDER The National Labor Relations Board orders that the Respondent, Small Freys Children Center, Inc., Man- heim, Pennsylvania, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Interrogating employees concerning their and other employees’ protected concerted activities. (b) Threatening to discharge employees if they contact the Respondent or its agents concerning their paychecks being late or short. (c) Threatening to sue employees for slander because they engaged in protected concerted activities. (d) Interrogating employees concerning contacts with the “Department of Labor;” and giving employees “a week” to consider being taken back as an employee, provided that employees would “disband” and cease talk- ing to each other. (e) Implementing a rule prohibiting employees from discussing employment issues or day care issues outside the workplace. (f) Discharging or otherwise discriminating against employees because they engaged in protected concerted activities, or to discourage employees from engaging in such activities. (g) 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 Heather Harnish, Abby Smith, and Brittany Ditzler full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, with- out prejudice to their seniority or any other rights or privileges previously enjoyed. (b) Make Heather Harnish, Abby Smith, and Brittany Ditzler whole for any loss of earnings and other benefits suffered as a result of the discrimination against them, with interest, in the manner set forth in the remedy sec- tion of this decision. (c) Within 14 days from the date of this Order, remove from its files any reference to the unlawful discharges of Heather Harnish, Abby Smith, and Brittany Ditzler, and Glen Rock Ham, 352 NLRB 516, 516 fn. 1 (2008), citing Rogers Corp., 344 NLRB 504 (2005). SMALL FREYS CHILDREN CENTER 3 within 3 days thereafter, notify these employees 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 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. (e) Within 14 days after service by the Region, post at its facility in Manheim, Pennsylvania, copies of the at- tached notice marked “Appendix.”2 Copies of the notice, on forms provided by the Regional Director for Region 4, after being signed by the Respondent’s authorized repre- sentative, shall be posted by the Respondent and main- tained for 60 consecutive days in conspicuous places in- cluding all places where notices to employees are custom- arily posted. Reasonable steps shall be taken by the Re- spondent 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 current employees and former employees employed by the Re- spondent at any time since October 12, 2009. (f) 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 comply. Dated, Washington, D.C. May 26, 2010 Peter C. Schaumber, Member Craig Becker, Member Mark Gaston Pearce, Member (SEAL) NATIONAL LABOR RELATIONS BOARD 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.” 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 bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT interrogate employees concerning their and other employees’ protected concerted activities. WE WILL NOT threaten to discharge employees if they contact us or our agents concerning their paychecks be- ing late or short. WE WILL NOT threaten to sue employees for slander because they engaged in protected concerted activities. WE WILL NOT interrogate employees concerning con- tacts with the “Department of Labor;” or give employees “a week” to consider being taken back as an employee provided that employees would “disband” and cease talk- ing to each other. WE WILL NOT implement rules prohibiting employees from discussing employment issues or day care issues outside the workplace. WE WILL NOT discharge or otherwise discriminate against employees because they engaged in protected concerted activities, or to discourage employees from engaging in such 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 this Order, offer Heather Harnish, Abby Smith, and Brittany Ditzler full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, with- out prejudice to their seniority or any other rights or privileges previously enjoyed. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4 WE WILL make Heather Harnish, Abby Smith, and Brittany Ditzler whole for any loss of earnings and other benefits suffered as a result of the discrimination against them, with interest. WE WILL, within 14 days from the date of this Order, remove from our files any reference to the unlawful dis- charges of Heather Harnish, Abby Smith, and Brittany Ditzler, and WE WILL, within 3 days thereafter, notify these employees in writing that this has been done, and that the unlawful discharges will not be used against them in any way. SMALL FREYS CHILDREN CENTER, INC.