Able Building Maintenance

National Labor Relations Board - Board Decisions

May 16, 2019

367 NLRB No. 134 (N.L.R.B. 2019)

367 NLRB No. 134
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.
Able Building Maintenance and its successor Empire
Facility Solutions, LLC and Mercedes Escate.
Case 22–CA–194688
May 16, 2019
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS MCFERRAN
AND EMANUEL
The General Counsel seeks a default judgment in this
case pursuant to the terms of an informal settlement
agreement. Upon a charge and first amended charge
filed by Mercedes Escate on March 13 and May 22,
2017, respectively, the General Counsel issued a com-
plaint on October 30, 2017, against Able Building
Maintenance, alleging that it violated Section 8(a)(1) of
the Act. Upon a second amended charge filed by Escate
on November 7, 2017, the General Counsel issued a first
amended complaint (the complaint) on February 15,
2018, against Able Building Maintenance and its succes-
sor Empire Facility Solutions, LLC, alleging that the
Respondents violated Section 8(a)(1) of the Act.1 On
February 28, Respondent Empire filed an answer to the
complaint, and Respondent Able filed an answer on
March 5.
Subsequently, the Respondents and Charging Party
Escate executed an informal settlement agreement, which
the Regional Director for Region 22 approved on May 7.
Pursuant to the terms of the settlement agreement, the
Respondents agreed to make Escate whole by paying her
an agreed-upon amount of backpay. Respondent Empire
also agreed to post the appropriate Board notice in Eng-
lish and in Spanish at 9 Polito Avenue, Lyndhurst, New
Jersey (the Lyndhurst facility), and Respondent Able
agreed to mail the appropriate Board notice in English
and in Spanish to the homes of all employees who
worked from August 22, 2016, through August 13, 2017.
The settlement agreement also contained the following
provision:
The Charged Parties agree that in case of non-
compliance with any of the terms of this Settlement
Agreement by the Charged Parties, and after 14 days’
notice from the Regional Director of the National Labor
Relations Board of such noncompliance without remedy
by the Charged Parties, the Regional Director will reis-
sue the complaint previously issued on October 30, 2017
in the instant case. Thereafter, the General Counsel may

1 All subsequent dates are in 2018 unless otherwise indicated.
file a motion for default judgment with the Board on the
allegations of the complaint. The Charged Parties under-
stand and agree that the allegations of the aforemen-
tioned complaint will be deemed admitted and their An-
swers to such complaint will be considered withdrawn.
The only issue that may be raised before the Board is
whether the Charged Parties defaulted on the terms of
this Settlement Agreement. The Board may then, without
necessity of trial or any other proceeding, find all allega-
tions of the complaint to be true and make findings of
fact and conclusions of law consistent with those allega-
tions adverse to the Charged Parties 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 enforcing the Board order ex parte, after service
or attempted service upon Charged Parties/Respondents
at the last addresses provided to the General Counsel.
By letter dated May 10, the Region’s compliance of-
ficer sent the Respondents a copy of the conformed set-
tlement agreement, with a cover letter explaining the
remedial actions they were required to take to comply.
Thereafter, by letter dated June 12, the compliance of-
ficer notified the Respondents that they had failed to
comply with the terms of the settlement agreement and
that unless compliance was achieved within 14 days (by
June 26), the Regional Director would revoke the agree-
ment, reissue the complaint, and seek a default judgment
from the Board.
On June 25, Respondent Able delivered a backpay
check to the Region, thereby satisfying the backpay
component of the settlement agreement. By email dated
July 19, the compliance officer issued a final request that
the Respondents fully comply with the terms of the set-
tlement agreement, including the notice posting/mailing
requirements and the submission of compliance docu-
mentation. She further informed them that absent full
compliance by July 23, the Region would initiate default
proceedings. The Respondents failed to comply. Ac-
cordingly, pursuant to the terms of the noncompliance
provisions of the settlement agreement, on October 17,
the Regional Director reissued the complaint and vacated
the settlement agreement.
On October 19, the General Counsel filed a Motion for
Default Judgment with the Board, requesting that the
Board issue a Decision and Order against the Respond-
ents containing findings of fact and conclusions of law
based on the allegations in the reissued complaint, and
that the Board provide “a full remedy of the unfair labor
practices alleged.” On December 18, the Board issued an
order transferring the proceeding to the Board and a No-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
tice to Show Cause why the motion should not be grant-
ed. The Respondents did not file a response. The allega-
tions 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 Respondents have failed to
comply with the terms of the settlement agreement. Con-
sequently, pursuant to the noncompliance provisions of
the settlement agreement set forth above, we find that the
Respondents’ answers to the original complaint have
been withdrawn and all of the allegations in the reissued
complaint are true. 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, Respondent Able has been a cor-
poration with its main office located in San Francisco,
California, and has been engaged in providing janitorial
services in commercial office buildings, including the
Lyndhurst facility. During the calendar year preceding
issuance of the complaint, Respondent Able, in conduct-
ing the business operations described above, purchased
and received goods and services in excess of $50,000
directly from points outside the State of New Jersey.
At all material times Respondent Empire has been a
limited liability corporation with its main office located
in Brooklyn, New York, and has been engaged in provid-
ing janitorial services in commercial office buildings,
including the Lyndhurst facility. During the calendar
year preceding issuance of the complaint, Respondent
Empire, in conducting the business operations described
above, purchased and received goods and services in
excess of $50,000 directly from points outside the State
of New Jersey. We find that the Respondents are em-
ployers engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act and that the Service Em-
ployees International Union 32BJ (the Union) has been a
labor organization within the meaning of Section 2(5) of
the Act.
At all material times until August 13, 2017, Respond-
ent Able and 9 Polito LLC (formerly Copper Ridge LLC)
have been parties to a contract for the provision of janito-
rial services at the Lyndhurst facility.
At all material times until August 13, 2017, Respond-
ent Able and the Union were parties to a collective bar-
gaining agreement covering wages, hours and other
terms and conditions of employment of employees em-
ployed at the Lyndhurst facility.
Effective August 13, 2017, Respondent Able’s con-
tract to provide janitorial services to the Lyndhurst facili-
ty was terminated, and effective August 14, 2017, Re-
spondent Empire became party to a contract to provide
janitorial services at that location. Since that date, Re-
spondent Empire has performed the janitorial services
previously performed by Respondent Able in basically
unchanged form and has assumed the collective-
bargaining agreement between Respondent Able and the
Union.
Before it began providing janitorial services at the
Lyndhurst facility, Respondent Empire had circumstan-
tial knowledge of the unfair labor practices in this case
and was put on actual notice of Respondent Able’s po-
tential liability by letters dated September 27 and Octo-
ber 11, 2017, from the Regional Director for Region 22.
We find that Respondent Empire has continued to pro-
vide the janitorial services previously provided by Re-
spondent Able at the Lyndhurst facility with notice of
Respondent Able’s potential liability to remedy its unfair
labor practices and that Respondent Empire is a succes-
sor to Respondent Able.
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times prior, the following individuals
held the positions set forth opposite their respective
names and have been supervisors within the meaning of
Section 2(11) of the Act and/or agents of Respondent
Able within the meaning of Section 2(13) of the Act:
Richard Hughes Division Manager
Dickson Mancebo Lead Employee
About August 25, 2016, employee Escate concertedly
complained to Dickson Mancebo regarding the wages,
hours, and working conditions of Respondent Able’s
employees by suggesting a more equitable manner of
distributing work.
About September 27, 2016, Respondent Able laid off
Escate. Since that date and until about November 20,
2017, the Respondents failed to recall Escate to work as
a fill-in employee because of her protected concerted
complaint and to discourage employees from engaging in
these or other concerted activities.
CONCLUSION OF LAW
By the conduct described above, the Respondents have
been interfering with, restraining, and coercing employ-
ees in the exercise of the rights guaranteed in Section 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.
ABLE BUILDING MAINTENANCE 3
REMEDY
Having found that the Respondents have engaged in
certain unfair labor practices, and in accordance with the
General Counsel’s request for a “full remedy” for the
violations found, we shall order the Respondents to cease
and desist and to take certain affirmative action designed
to effectuate the policies of the Act. Specifically, having
found that the Respondents violated Section 8(a)(1) of
the Act by failing to recall Mercedes Escate between
September 27, 2016 and November 20, 2017, we shall
order the Respondents, jointly and severally, to make
Escate whole for any loss of earnings and other benefits
suffered as a result of the unlawful action against her, to
the extent that the Respondents have not already done
so.2 Backpay shall be computed in accordance with F.
W. Woolworth Co., 90 NLRB 289 (1950), with interest at
the rate prescribed in New Horizons, 283 NLRB 1173
(1987), compounded daily as prescribed in Kentucky
River Medical Center, 356 NLRB 6 (2010). In accord-
ance with our decision in King Soopers, Inc., 364 NLRB
No. 93 (2016), enfd. in relevant part, 859 F.3d 23 (D.C.
Cir. 2017), we shall also order the Respondents, jointly
and severally, to compensate Escate for her search-for-
work and interim employment expenses regardless of
whether those expenses exceed interim earnings. Search-
for-work and interim employment expenses shall be cal-
culated separately from taxable net backpay, with interest
at the rate prescribed in New Horizons, supra, com-
pounded daily as prescribed in Kentucky River Medical
Center, supra.3
We shall further order the Respondents to compensate
Escate for any adverse tax consequences of receiving a
lump-sum backpay award, to the extent that the Re-
spondents have not already done so, and to file with the
Regional Director for Region 22 a report allocating the
backpay award to the appropriate calendar years. Ad-
voServ of New Jersey, Inc., 363 NLRB No. 143 (2016).
Finally, given that Respondent Able no longer pro-
vides janitorial services at the Lyndhurst facility, we
shall order Respondent Able to mail a copy of the at-
tached notice to the last known address of all employees

2 Because it is unclear whether the total amount set forth in the set-
tlement agreement constitutes a full make-whole remedy, we leave to
compliance a determination of the proper amount due to Escate.
3 The General Counsel additionally seeks reasonable consequential
damages incurred as a result of the Respondents’ unfair labor practices.
This issue, which was not briefed, would involve a change in Board
law. We are not prepared at this time to deviate from our current reme-
dial practice. Accordingly, we decline to order this relief at this time.
See, e.g., Laborers International Union of North America, Local Union
No. 91 (Council of Utility Contractors), 365 NLRB No. 28, slip op. at 1
fn. 2 (2017).
who worked for Respondent Able at that facility during
the period of August 22, 2016, through August 13, 2017.
ORDER
A. The National Labor Relations Board orders that
Respondent Able Building Maintenance, San Francisco,
California, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Failing to recall employees from layoff in response
to their protected concerted activities and to discourage
other employees from engaging in these or other protect-
ed concerted activities.
(b) 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) Jointly and severally with Respondent Empire, and
to the extent the Respondents have not already done so,
make Mercedes Escate whole for any loss of earnings
and other benefits suffered as a result of the unlawful
failure to recall her between September 27, 2016, and
November 20, 2017, in the manner set forth in the reme-
dy section of this decision, plus reasonable search-for-
work and interim employment expenses.
(b) Jointly and severally with Respondent Empire, and
to the extent the Respondents have not already done so,
compensate Mercedes Escate for the adverse tax conse-
quences, if any, of receiving a lump-sum backpay award,
and file with the Regional Director for Region 22, within
21 days of the date the amount of backpay is fixed, either
by agreement or Board order, a report allocating the
backpay award to the appropriate calendar years.
(c) 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 rec-
ords 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.
(d) Within 14 days after service by the Region, mail
copies of the attached notice marked “Appendix A” to
the extent it has not done so.4 Copies of the notice in
English and in Spanish, on forms provided by the Re-
gional Director for Region 22, after being signed by Re-

4 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.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
spondent Able’s authorized representative, shall be
mailed by Respondent Able to the last known address of
all employees who worked for Respondent Able at the
Lyndhurst facility during the period of August 22, 2016,
to August 13, 2017.
(e) Within 21 days after service by the Region, file
with the Regional Director for Region 22 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that Respondent Able has
taken to comply.
B. The National Labor Relations Board orders that
Respondent Empire Facility Solutions, LLC, Brooklyn,
New York, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Failing to recall employees from layoff in response
to their protected concerted activities.
(b) 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) Jointly and severally with Respondent Able, and to
the extent the Respondents have not already done so,
make Mercedes Escate whole for any loss of earnings
and other benefits suffered as a result of the unlawful
failure to recall her between September 27, 2016, and
November 20, 2017, in the manner set forth in the reme-
dy section of this decision, plus reasonable search-for-
work and interim employment expenses.
(b) Jointly and severally with Respondent Able, and to
the extent the Respondents have not already done so,
compensate Mercedes Escate for the adverse tax conse-
quences, if any, of receiving a lump-sum backpay award,
and file with the Regional Director for Region 22, within
21 days of the date the amount of backpay is fixed, either
by agreement or Board order, a report allocating the
backpay award to the appropriate calendar years.
(c) 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 rec-
ords 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.
(d) Within 14 days after service by the Region, and to
the extent that Respondent Empire has not already done
so, post at the building located at 9 Polito Avenue, Lynd-
hurst, New Jersey, copies of the attached notice marked
“Appendix B.”5 Copies of the notice in English and in
Spanish, on forms provided by the Regional Director for
Region 22, after being signed by Respondent Empire’s
authorized representative, shall be posted by Respondent
Empire and maintained for 60 consecutive days in con-
spicuous places including all places where notices to
employees are customarily posted. In addition to physi-
cal 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 Re-
spondent Empire customarily communicates with its em-
ployees by such means. Reasonable steps shall be taken
by Respondent Empire to ensure that the notices are not
altered, defaced, or covered by any other material. If
Respondent Empire has gone out of business or closed
the facility involved in these proceedings, Respondent
Empire shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former
employees employed at any time since August 14, 2017.
(e) Within 21 days after service by the Region, file
with the Regional Director for Region 22 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that Respondent Empire has
taken to comply.
Dated, Washington, D.C. May 16, 2019
______________________________________
John F. Ring, Chairman
______________________________________
Lauren McFerran, Member
________________________________________
William J. Emanuel Member
(SEAL) NATIONAL LABOR RELATIONS BOARD

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.”
ABLE BUILDING MAINTENANCE 5
APPENDIX A
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 fail to recall you from layoff in response
to your protected 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, jointly and severally with Empire Facility
Solutions, LLC, and to the extent we have not already
done so, make Mercedes Escate whole for any loss of
earnings and other benefits suffered as a result of the
unlawful failure to recall her from layoff between Sep-
tember 27, 2016, and November 20, 2017, plus interest,
plus reasonable search-for-work and interim employment
expenses.
WE WILL, jointly and severally with Empire Facility
Solutions, LLC, and to the extent we have not already
done so, compensate Mercedes Escate for the adverse tax
consequences, if any, of receiving a lump-sum backpay
award, and WE WILL file with the Regional Director for
Region 22, within 21 days of the date the amount of
backpay is fixed, either by agreement or Board order, a
report allocating the backpay award to the appropriate
calendar years.
ABLE BUILDING MAINTENANCE
The Board’s decision can be found at
www.nlrb.gov/case/22-CA-194688 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington,
D.C. 20570, or by calling (202) 273-1940.
APPENDIX B
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 fail to recall you from layoff in response
to your protected 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, jointly and severally with Able Building
Maintenance, and to the extent we have not already done
so, make Mercedes Escate whole for any loss of earnings
and other benefits suffered as a result of the unlawful
failure to recall her from layoff between September 27,
2016, and November 20, 2017, plus interest, plus reason-
able search-for-work and interim employment expenses.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
WE WILL, jointly and severally with Able Building
Maintenance, and to the extent we have not already done
so, compensate Mercedes Escate for the adverse tax con-
sequences, if any, of receiving a lump-sum backpay
award, and WE WILL file with the Regional Director for
Region 22, within 21 days of the date the amount of
backpay is fixed, either by agreement or Board order, a
report allocating the backpay award to the appropriate
calendar years.
EMPIRE FACILITY SOLUTIONS, LLC
The Board’s decision can be found at
www.nlrb.gov/case/22-CA-194688 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington,
D.C. 20570, or by calling (202) 273-1940.