Betteroads Asphalt, LLC and Betterecycling Corporation, single employer

National Labor Relations Board - Board Decisions

Jul 6, 2020

369 N.L.R.B. 114 (N.L.R.B. 2020)

369 NLRB No. 114
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.
Betteroads Asphalt, LLC and Betterecycling Corpora-
tion, and Union Obreros Cemento Mezclado.
Cases 12–CA–185172, 12–CA–186232, 12–CA–
186243, 12–CA–189888, and 12–CA–192850
July 6, 2020
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN
AND EMANUEL
The General Counsel seeks summary judgment in this
case on the grounds that there are no genuine issues of ma-
terial fact as to the allegations in the complaint, and that
the Board should find, as a matter of law, that Betteroads
Asphalt, LLC and Betterecycling Corporation, a single
employer (collectively, the Respondent), violated Section
8(a)(5) and (1) of the Act by failing to bargain with the
Union Obreros Cemento Mezclado (Union) and Section
8(a)(1) of the Act by failing to remit union dues it had de-
ducted from its employees’ pay.
Pursuant to two charges filed by the Union on October
14, 2016, and other charges filed by the Union on Septem-
ber 28, 2016, December 15, 2016, and February 10, 2017,
the General Counsel issued a consolidated complaint on
March 31, 2017, a second consolidated complaint on May
31, 2017, and an amendment to the second consolidated
complaint on March 7, 2019. The second consolidated
complaint as amended (complaint) alleges that the Re-
spondent violated Section 8(a)(5) and (1) of the Act by
failing to make numerous payments to its bargaining unit
employees and to other entities on behalf of its unit em-
ployees without providing the Union notice and oppor-
tunity to bargain and by failing and refusing to furnish the
Union with certain relevant information. It also alleges
that the Respondent violated Section 8(a)(1) of the Act
when it failed to remit to the Union dues deducted from its
employees’ pay. The Respondent filed answers admitting
with clarifications the allegations in the complaint, deny-
ing the legal conclusions, and asserting affirmative de-
fenses.
On August 23, 2019, the General Counsel filed a Mo-
tion for Summary Judgment, and the Respondent did not
file an opposition. On December 20, 2019, the Board
1 While admitting to the allegations in Paragraphs 8(j) and (k) of the
complaint, the Respondent clarifies that it was “not required to pay [a]
health plan premium for the employees, but only [a] contribution to the
trust fund (‘Fondo de Bienestar’) managed by the Union for medical and
life insurance, among other benefits.” Exh. 13. Because the Respondent
admits to all the allegations in Paragraph 8, we find the clarification does
not raise any genuine issues of material fact. To the extent the
issued an order transferring the proceeding to the Board
and a Notice to Show Cause why the motion should not be
granted. The Respondent did not file a response to the
Notice to Show Cause.
Ruling on Motion for Summary Judgment
“It is a settled principle that for summary judgment to
be appropriate the record must show that there is no gen-
uine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law.” Conoco Chem-
icals Co., 275 NLRB 39, 40 (1985) (citing Stephens Col-
lege, 260 NLRB 1049, 1050 (1982)).
The Respondent admits that it did not pay or remit var-
ious monies, that these payments and remittances were
mandatory subjects of bargaining, and that it did not pro-
vide the Union notice and an opportunity to bargain re-
garding the withholding of these monies.1 Thus, the Re-
spondent admits to conduct that violates Section 8(a)(5)
and (1) of the Act. See Litton Financial Printing Division
v. NLRB, 501 U.S. 190, 199 (1991).
The Respondent also admits that since on or about July
1, 2016, it failed to remit to the Union dues it deducted
from unit employees’ pay pursuant to valid, unexpired,
unrevoked dues-checkoff authorizations. The record
shows that the parties’ collective-bargaining agreement
expired on January 19, 2015. As we recently held in Val-
ley Hospital Medical Center, Inc. d/b/a Valley Hospital
Medical Center, 368 NLRB No. 139 (2019), an em-
ployer’s obligation to deduct and remit dues to a union
pursuant to the terms of a contractual dues-checkoff pro-
vision ceases with the expiration of the collective-bargain-
ing agreement that contained the provision. Thus, an em-
ployer may lawfully stop deducting union dues from its
unit employees’ pay following the expiration of a collec-
tive-bargaining agreement containing a dues-checkoff
provision.
However, an employer that continues, after the agree-
ment expires, to deduct union dues from its employees’
pay may not lawfully keep that money for itself. Doing so
interferes with unit employees’ exercise of their Section 7
rights. Section 7 guarantees employees the right, among
others, to form, join, or assist labor organizations. Em-
ployees exercise their right to join and assist a labor or-
ganization when they pay union membership dues through
authorized deductions from their pay. When their em-
ployer deducts dues amounts but then retains that money
clarification could affect how much money the Respondent owes, and to
which fund or funds that money should be directed, we leave the resolu-
tion of those issues to the compliance phase of these proceedings. Sim-
ilarly, we leave to compliance the determination of how much the Re-
spondent owes based on its clarification that “payments to [Administra-
cion para el Sustento de Menores] were remitted on November 29,
2016.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
for itself, it necessarily interferes with the exercise of these
rights. Because dues amounts are still being deducted,
employees are misled into believing that their union dues
are being paid, so they will not make alternative arrange-
ments to pay their dues as they could have if their em-
ployer had stopped deducting dues after the contract ex-
pired. Moreover, the employer’s retention of deducted
dues amounts doubles the economic burden on employees
by forcing those who desire to remain in good standing
with their union to pay dues in an amount equal to that
already deducted from their pay—dues they may not be
able to afford. Accordingly, the Respondent has admitted
to conduct that interferes with the exercise of Section 7
rights and is therefore violative of Section 8(a)(1) of the
Act. See Duane Reade, Inc., 342 NLRB 1016, 1030
(2004); Talaco Communications, Inc., 321 NLRB 762,
763 (1996).
Additionally, the Respondent admits that it did not pro-
vide the Union with information it requested that is neces-
sary for and relevant to the Union’s performance of its du-
ties as the exclusive collective-bargaining representative
of the unit’s employees, and the Respondent may not be
heard to assert an affirmative defense of its failure to do
so or of any of its alleged unlawful conduct.2 Failing to
furnish requested relevant information absent a legally
sufficient defense violates Section 8(a)(5) and (1) of the
Act. See Detroit Edison Co. v. NLRB, 440 U.S. 301, 303
(1979).
Therefore, we find that the Respondent has failed to
raise a genuine issue of material fact warranting a hearing
and that the General Counsel is entitled to judgment as a
matter of law, and we grant the General Counsel’s motion
for summary judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, Respondent Betteroads, a Puerto
Rico limited liability company with offices and places of
business in Puerto Rico and the United States Virgin Is-
lands, has been engaged in the production and sale of as-
phalt and the paving of roads. During the 12-month period
preceding the issuance of the complaint, Respondent Bet-
teroads, in conducting its operations, purchased and re-
ceived at its Puerto Rico facilities goods valued in excess
2 We reject the Respondent’s affirmative defenses and treat the Gen-
eral Counsel’s Motion for Summary Judgment as conceded because the
Respondent did not file an opposition to the Motion or a response to the
Notice to Show Cause. See Sec. 102.24(b) of the Board’s Rules and
Regulations (“If the opposing party files no opposition or response, the
Board may treat the motion as conceded, and default judgment, summary
judgment, or dismissal, if appropriate, will be entered.”).
of $50,000 directly from points outside the Common-
wealth of Puerto Rico.
At all material times, Respondent Betterecycling, a
Puerto Rico corporation with offices and places of busi-
ness in Puerto Rico and the United States Virgin Islands,
has been engaged in the paving of roads with recycled ma-
terials and the performance of related services. During the
12-month period preceding the issuance of the complaint,
Respondent Betterecycling, in conducting its operations,
purchased and received at its Puerto Rico facilities goods
valued in excess of $50,000 directly from points outside
the Commonwealth of Puerto Rico.
At all material times, Respondent Betteroads and Re-
spondent Betterecycling have been affiliated business en-
terprises with common officers, ownership, directors,
management, and supervision; have formulated and ad-
ministered a common labor policy; have shared common
premises and facilities; have provided services for and
made sales to each other; have interchanged personnel
with each other; have interrelated operations; and have
held themselves out to the public as a single integrated
business enterprise.
Based on the operations described above, we find that
Respondent Betteroads and Respondent Betterecycling
constitute a single integrated business enterprise, a single
employer within the meaning of the Act, and an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.3
We further find that 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 mean-
ing of Section 2(11) of the Act and agents of the Respond-
ent within the meaning of Section 2(13) of the Act:
Jorge Diaz - President and CEO
Arturo Diaz - Chairman of the Board
Linette Orta - Director of Human Resources
The following employees of the Respondent, herein
called the Unit, constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of Sec-
tion 9(b) of the Act:
3 In its second amended answer to the second consolidated complaint,
Respondent Betteroads and Respondent Betterecycling admit to the fac-
tual allegations forming the basis of the single-employer allegation while
also attempting to “clarify that the companies have operated as joint em-
ployers, but have never been a single integrated business enterprise.” We
find that the allegations admitted clearly establish single-employer sta-
tus. See Teckwal Corp., 263 NLRB 892, 894 fn. 5 (1982).
BETTEROADS ASPHALT, LLC 3
All production and maintenance employees of Respond-
ent employed in the manufacture of asphalt in its plants
located in Puerto Rico, including road crews; excluding
all executive, administrative and professional personnel,
office clerical and plant clerical employees, master me-
chanics, foremen, watchmen, timekeepers, buyers,
guards and supervisors as defined in the Act.
Since on or before September 14, 2012, and at all mate-
rial times, the Respondent has recognized the Union as the
exclusive collective-bargaining representative of the Unit.
This recognition has been embodied in successive collec-
tive-bargaining agreements, the most recent of which was
effective by its terms from September 14, 2012, to January
19, 2015.
At all times since on or before September 14, 2012,
based on Section 9(a) of the Act, the Union has been the
exclusive collective-bargaining representative of the Unit.
A. Payments and Remittances
Since on or about a date in June 2016, the Respondent
has failed to pay the employer’s contribution for health in-
surance and other benefits to Fondo de Fideicomiso, Un-
ion Obreros Cemento Mezclado (the Fund) on behalf of
employees in the Unit.
Since on or about a date in June 2016, the Respondent
has failed to remit to the Fund the contributions the Re-
spondent deducted from the wages of employees in the
Unit for health insurance and other benefits.
Since on or about a date in June 2016, the Respondent
has failed to remit to Cooperativa de Credito y Ahorro
EMDI, a credit union, contributions by employees in the
Unit that were deducted from their wages.
Since on or about a date in August 2016, the Respondent
has failed to pay employees in the Unit their wages.
From on or about a date in August 2016 until November
29, 2016, the Respondent failed to remit to Administra-
cion para el Sustento de Menores (ASUME) child support
payments that the Respondent deducted from the wages of
employees in the Unit.
Since on or about September 16, 2016, the Respondent
has failed to pay employees in the Unit their vacation pay.
Since on or about September 16, 2016, the Respondent
has failed to pay employees in the Unit their accrued sick
leave pay.
Since on or about December 15, 2016, the Respondent
has failed to pay employees in the Unit their annual Christ-
mas bonus for 2016.
The subjects set forth above relate to wages, hours, and
other terms and conditions of employment of the Unit and
are mandatory subjects for the purposes of collective bar-
gaining.
The Respondent engaged in the conduct described
above without prior notice to the Union and without af-
fording the Union an opportunity to bargain with the Re-
spondent with respect to this conduct and the effects of
this conduct.
B. Information Requests
Since on or about October 6, 2016, by text message, and
since on or about October 12, 2016, by letter, the Union
has requested that the Respondent furnish the Union with
the following information: a list of medical plan contribu-
tions deducted from payroll for employees in the Unit and
a list of union dues payroll deductions for the months of
August and September 2016. The Respondent has failed
and refused to furnish the Union with this information.
Since on or about October 12, 2016, the Union has re-
quested, by letter, that the Respondent furnish the Union
with the following information: a list of wages owed to
employees in the Unit. The Respondent has failed and re-
fused to furnish this information.
The information requested is necessary for, and relevant
to, the Union’s performance of its duties as the exclusive
collective-bargaining representative of the Unit.
C. Union Dues
Since on or about July 1, 2016, the Respondent has re-
tained for itself union dues deducted from its employees’
pay.
CONCLUSIONS OF LAW
By failing to pay and remit money it owed without
providing the Union notice and an opportunity to bargain,
and by failing to provide the Union with the necessary and
relevant information it requested, the Respondent violated
Section 8(a)(5) and (1) of the Act. By retaining for itself
union dues deducted from employees’ pay, the Respond-
ent violated Section 8(a)(1) of the Act. By its conduct, the
Respondent has engaged in unfair labor practices affecting
commerce within the meaning of Section 2(6) and (7) of
the Act.
REMEDY
Having found that the Respondent engaged in certain
unfair labor practices, we shall order it to cease and desist
and to take certain affirmative action designed to effectu-
ate the policies of the Act. Specifically, having found that
the Respondent violated Section 8(a)(5) and (1) of the Act
by changing terms and conditions of employment of its
unit employees without prior notice to the Union and with-
out affording the Union an opportunity to bargain, we
shall order the Respondent to make whole unit employees
by paying them their unpaid wages since on or about Au-
gust 2016, vacation pay since September 16, 2016, ac-
crued sick leave pay since September 16, 2016, and
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
Christmas bonus for 2016. Such amounts are to be com-
puted in the manner set forth in Ogle Protection Service,
183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971),
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). Ad-
ditionally, we shall order the Respondent to compensate
the unit employees for the adverse tax consequences, if
any, of receiving a lump-sum backpay award in accord-
ance with Don Chavas, LLC d/b/a Tortillas Don Chavas,
361 NLRB 101 (2014), and to file with the Regional Di-
rector for Region 12, 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 cal-
endar years for each employee in accordance with Ad-
voServ of New Jersey, Inc., 363 NLRB No. 143 (2016).
Having found that the Respondent violated Section
8(a)(5) and (1) of the Act by failing to remit monies de-
ducted from its employees’ wages to the Cooperativa de
Credito y Ahorro EMDI for credit union savings since on
or about June 2016, failing to remit monies deducted from
its employees’ wages to the Administracion para el Sus-
tento de Menores (ASUME) for child support payments
from on or about August 2016 until November 29, 2016,
and failing to pay the employer contributions and to remit
the employee contributions to the Fondo de Fideicomiso,
Union Obreros Cemento Mezclado on behalf of unit em-
ployees for health insurance and other benefits since on or
about June 2016, we shall order the Respondent to make
all such delinquent payments and fund contributions on
behalf of unit employees that have not been made since
those dates, including any additional amounts due the
funds in accordance with Merryweather Optical Co., 240
NLRB 1213, 1216 fn. 7 (1979).4 Further, the Respondent
shall be required to reimburse unit employees for any ex-
penses ensuing from its failure to make the required fund
contributions as set forth in Kraft Plumbing & Heating,
252 NLRB 891, 891 fn. 2 (1980), enfd. mem. 661 F.2d
940 (9th Cir. 1981). Such amounts shall be computed in
the manner set forth in Ogle Protection Service, above,
with interest at the rate prescribed in New Horizons,
above, compounded daily as prescribed in Kentucky River
Medical Center, above.5
In addition, having found that the Respondent violated
Section 8(a)(5) and (1) of the Act by failing to provide the
4 We leave to compliance the determination of how much money the
Respondent owes and to whom based on its clarification that it was “not
required to pay [a] health plan premium for the employees, but only [a]
contribution to the trust fund (‘Fondo de Bienestar’) managed by the Un-
ion for medical and life insurance, among other benefits.” Likewise, we
leave to compliance the determination of how much the Respondent
owes, if anything, based on its clarification that “payments to ASUME
were remitted on November 29, 2016.”
Union with information that is relevant to and necessary
for the Union’s performance of its functions as the collec-
tive-bargaining representative of the Respondent’s unit
employees, we shall order the Respondent to furnish to the
Union the list of medical plan contributions deducted from
payroll and the list of union dues payroll deductions that
the Union requested on or about October 6 and 12, 2016.
We shall also order the Respondent to furnish to the Union
the list of wages owed to unit employees that the Union
requested on October 12, 2016.
Having found that the Respondent violated Section
8(a)(1) by retaining for itself union dues it deducted from
its employees’ pay since on or about July 1, 2016, we shall
order the Respondent to return those funds to the employ-
ees, plus interest at the rate prescribed in New Horizons,
above, compounded daily as prescribed in Kentucky River
Medical Center, above.
We recognize that at times the Board has ordered union
dues deducted from employees’ pay and retained by the
employer after the expiration of a collective-bargaining
agreement to be remitted to the union. See, e.g., Talaco
Communications, Inc., 321 NLRB 762, 763–764 (1996);
Valley Stream Aluminum, Inc., 321 NLRB 1076, 1077–
1079 (1996); Able Aluminum Co., 321 NLRB 1071, 1072
(1996). However, in other cases the Board has held that
dues deducted but not remitted after a collective-bargain-
ing agreement expired should be returned to the employ-
ees. See Gray’s Cleaning Service, 323 NLRB No. 195,
slip op. at 2 fn. 2 (1997); R.E.C. Corp., 296 NLRB 1293,
1293 fn. 3 (1989); Peerless Roofing Co., Ltd., 247 NLRB
500, 506 fn. 17 (1980), enfd. 641 F.2d 734 (9th Cir. 1981);
see also Duane Reade, Inc., 342 NLRB 1016, 1019, 1030
(2004) (ordering a cease and desist remedy—and not re-
quiring that the funds be remitted to the union—where an
employer had already returned the dues to the employees).
Today, we clarify that the appropriate remedy is to order
the employer to return the deducted but retained union
dues to the employees.
Preliminarily, we observe that Talaco Communications
was the first case in which the Board ordered union dues
deducted but not remitted after a collective-bargaining
agreement expired to be furnished to the union rather than
returned to the employees. As noted above, however, the
Board held to the contrary in R.E.C. Corp. and Peerless
Roofing, and the Board in Talaco did not cite those cases,
5 To the extent that an employee has made personal contributions to
a fund that are accepted by the fund in lieu of the employer’s delinquent
contributions during the period of the delinquency, the Respondent will
reimburse the employee, but the amount of such reimbursement will con-
stitute a setoff to the amount that the Respondent otherwise owes the
fund.
BETTEROADS ASPHALT, LLC 5
acknowledge that it was departing from precedent, and ex-
plain why. Thus, in this respect, the Talaco decision was
arbitrary and capricious. See, e.g., ABM Onsite Services–
West, Inc. v. NLRB, 849 F.3d 1137, 1142 (D.C. Cir. 2017)
(citing the Administrative Procedure Act and holding that
“an agency’s unexplained departure from precedent is ar-
bitrary and capricious”). The sole precedent cited regard-
ing this issue in Talaco Communications was Independent
Stave Company, 248 NLRB 219, 221 (1980). But in that
case, the employer was legally bound to remit the retained
dues to the union because the dues were deducted from
employees’ pay during the term of a collective-bargaining
agreement containing a dues-checkoff provision. Thus,
Independent Stave did not address the remedial issue in
Talaco and here, i.e., whether dues amounts deducted and
retained after a collective-bargaining agreement contain-
ing a dues-checkoff provision has expired should be re-
mitted to the union or returned to employees.6
Our conclusion that such amounts should be returned to
the employees is further guided by our decision in Valley
Hospital Medical Center, above. Restoring longstanding
precedent,7 we held that an employer’s obligation to check
off union dues ends when its collective-bargaining agree-
ment containing a checkoff provision expires. See 368
NLRB No. 139, slip op. at 1. We did not decide in Valley
Hospital whether an employer may lawfully choose to
continue deducting dues and remitting them to the union
after the agreement expires,8 and we need not decide that
question here in order to find, as we have, that an em-
ployer, post-expiration, may not lawfully deduct union
dues from its employees’ pay and keep that money for it-
self. However, in finding such a violation, the Board is
not enforcing an obligation owed by the employer to the
union, nor is it enforcing the employees’ individual
checkoff authorizations. Rather, the Board is simply up-
holding employees’ Section 7 right to join or assist a labor
organization. Thus, we hold that the proper remedy is to
return the money to the employees whose rights were in-
terfered with when the Respondent retained their dues—
not to order that money remitted to the Union, whose stat-
utory rights are not at issue here. Each employee will then
6 Neither Able Aluminum nor Valley Stream Aluminum ameliorated
Talaco’s noncompliance with the Administrative Procedure Act. In
those decisions, the Board inappositely cited Independent Stave again
and Talaco itself. See Able Aluminum, 321 NLRB at 1072 & fn. 4; Valley
Stream Aluminum, 321 NLRB at 1077 & fn. 4.
7 Bethlehem Steel, 136 NLRB 1500 (1962), remanded on other
grounds sub nom. Marine & Shipbuilding Workers v. NLRB, 320 F.2d
615 (3d Cir. 1963), cert. denied 375 U.S. 984 (1964); Tampa Sheet Metal
Co., 288 NLRB 322, 326 fn. 15 (1988).
8 368 NLRB No. 139, slip op. at 6 fn. 18 (leaving undecided “whether
Sec. 302 of the Labor Management Relations Act must be construed to
prohibit dues checkoff upon expiration of a collective-bargaining agree-
ment providing for checkoff, as some courts have held”).
be able to choose to remit the refunded deductions to the
Union or to refrain from doing so, as he or she sees fit.
Either way, he or she will be exercising rights guaranteed
by Section 7 of the Act.9
To the extent Talaco Communications and its progeny
are inconsistent with this decision, those cases are over-
ruled.
Finally, because the Respondent indicated that its em-
ployment relationship with its employees ceased in 2016,
we shall order the Respondent to mail a copy of the at-
tached notice, in both English and Spanish, to the Union
and to the last known addresses of its former unit employ-
ees in order to inform them of the outcome of this pro-
ceeding.
ORDER
The National Labor Relations Board orders that the Re-
spondent, Betteroads Asphalt, LLC and Betterecycling
Corporation, a single employer, San Juan, Puerto Rico, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Changing the terms and conditions of employment
of its unit employees without first notifying Union Obre-
ros Cemento Mezclado (Union) and giving it an oppor-
tunity to bargain.
(b) Refusing to bargain collectively with the Union by
failing and refusing to furnish it with information it re-
quested that is relevant to and necessary for the Union’s
performance of its functions as the collective-bargaining
representative of the Respondent’s unit employees.
(c) Retaining union dues deducted from its employees’
pay.
(d) 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) Make the unit employees whole for any loss of earn-
ings and other benefits resulting from the Respondent’s
failure to make the required payments, in the manner set
forth in the remedy section of this decision.
9 We also observed in Valley Hospital that discontinuing dues
checkoff after a collective-bargaining agreement expires is an economic
weapon an employer may choose to deploy to exert pressure in bargain-
ing with the union for a successor agreement. Id., slip op. at 7–8. And
the Supreme Court has long since held that it is improper for the Board
to function “as an arbiter of the sort of economic weapons the parties can
use in seeking to gain acceptance of their bargaining demands.” NLRB
v. Insurance Agents’ International Union, 361 U.S. 477, 497 (1960). We
believe it is more consistent with these principles to order post-expiration
dues amounts deducted and unlawfully retained to be returned to em-
ployees rather than remitted to a union against which the employer may
be seeking to exert economic pressure.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
(b) Make all required delinquent payments to the appli-
cable funds on behalf of the unit employees, including any
additional amounts due the funds, in the manner set forth
in the remedy section of this decision.
(c) Reimburse unit employees for any expenses ensuing
from the Respondent’s failure to make the required pay-
ments to the funds, in the manner set forth in the remedy
section of this decision.
(d) Return to its employees dues deducted from their
pay, but not remitted to the Union, after the expiration of
the collective-bargaining agreement, in the manner set
forth in the remedy section of this decision.
(e) Compensate the unit employees for the adverse tax
consequences, if any, of receiving lump-sum backpay
awards, and file with the Regional Director for Region 12,
within 21 days of the date the amount of backpay is fixed,
either by agreement or Board order, a report allocating the
backpay awards to the appropriate calendar years for each
employee.
(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, social
security payment records, timecards, personnel records
and reports, and all other records, including an electronic
copy of such records if stored in electronic form, neces-
sary to analyze the amount of backpay due under the terms
of this Order.
(g) Furnish to the Union in a timely manner the infor-
mation requested by the Union in its text message and let-
ters sent on or about October 6 and 12, 2016.
(h) Within 14 days after service by the Region, dupli-
cate and mail, at its own expense and after being signed
by the Respondent’s authorized representative, copies of
the attached notice marked “Appendix”10 in both English
and Spanish to the Union and to all unit employees who
were employed by the Respondent at any time since June
1, 2016. In addition to the mailing of paper notices, no-
tices shall be distributed electronically, such as by email,
posting on an intranet or an internet site, and/or other elec-
tronic means, if the Respondent customarily communi-
cates with its employees by such means.
(i) Within 21 days after service by the Region, file with
the Regional Director for Region 12 a sworn certification
of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to com-
ply.
Dated, Washington, D.C. July 6, 2020
10 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Mailed by Order of the National
Labor Relations Board” shall read “Mailed Pursuant to a Judgment of the
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John F. Ring, Chairman
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Marvin E. Kaplan, Member
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William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
MAILED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vi-
olated Federal labor law and has ordered us to mail 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 ac-
tivities.
WE WILL NOT change the terms and conditions of em-
ployment of our unit employees without first notifying the
Union Obreros Cemento Mezclado (Union) and giving it
an opportunity to bargain.
WE WILL NOT refuse to bargain collectively with the Un-
ion by failing and refusing to furnish it with information it
requested that is relevant to and necessary for the Union’s
performance of its functions as the collective-bargaining
representative of our unit employees.
WE WILL NOT retain union dues deducted from your pay.
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 make unit employees whole for any loss of
earnings and other benefits resulting from our failure to
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
BETTEROADS ASPHALT, LLC 7
pay your wages, vacation pay, accrued sick leave pay, and
Christmas bonuses, plus interest.
WE WILL make all delinquent payments to the Coopera-
tiva de Credito y Ahorro EMDI, the Administracion para
el Sustento de Menores (ASUME), and the Fondo de Fid-
eicomiso, Union Obreros Cemento Mezclado, including
any additional amounts due to the funds, and WE WILL re-
imburse you for any expenses ensuing from our failure to
make the required payments.
WE WILL return to you union dues we deducted from
your pay but did not remit to the Union after the collective-
bargaining agreement expired, plus interest.
WE WILL compensate affected employees for the ad-
verse tax consequences, if any, of receiving lump-sum
backpay awards, and WE WILL file with the Regional Di-
rector for Region 12, within 21 days of the date the amount
of backpay is fixed, either by agreement or Board order, a
report allocating the backpay awards to the appropriate
calendar years for each employee.
WE WILL furnish to the Union in a timely manner the
information requested by the Union in its text message and
letters sent on or about October 6 and 12, 2016.
BETTEROADS ASPHALT, LLC AND
BETTERECYCLING CORPORATION, A SINGLE
EMPLOYER
The Board’s decision can be found at
www.nlrb.gov/case/12-CA-185172 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.