CG's Law & Janitorial Service

National Labor Relations Board - Board Decisions

Jan 4, 2010

354 NLRB No. 126 (N.L.R.B. 2010)

354 NLRB No. 126
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.
CG’s Lawn & Janitorial Service, LLC and Industrial
Technical and Professional Employees Union,
OPEIU Local 4873. Cases 15–CA–18985 and 15–
CA–19144
January 4, 2010
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBER SCHAUMBER
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 the Union, the General
Counsel issued the consolidated complaint on August 31,
2009, against CG’s Lawn & Janitorial Service, LLC, the
Respondent, alleging that it has violated Section 8(a)(5)
and (1) of the Act. The Respondent failed to file an an-
swer.
On October 15, 2009, the General Counsel filed a Mo-
tion for Default Judgment with the Board. Thereafter, on
October 20, 2009, 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 Judgment1
Section 102.20 of the Board’s Rules and Regulations
provides that the allegations in the 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-

1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Liebman and Member Schaumber constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act. See Narricot Industries, L.P. v. NLRB, ___
F.3d ___, 2009 WL 4016113 (4th Cir. Nov. 20, 2009); Snell Island
SNF LLC v. NLRB, 568 F.3d 410 (2d Cir. 2009), petition for cert. filed
78 U.S.L.W. 3130 (U.S. Sept. 11, 2009) (No. 09-328); New Process
Steel v. NLRB, 564 F.3d 840 (7th Cir. 2009), cert. granted ___ S.Ct.
___, 2009 WL 1468482 (U.S. Nov. 2, 2009); Northeastern Land Ser-
vices v. NLRB, 560 F.3d 36 (1st Cir. 2009), petition for cert. filed 78
U.S.L.W. 3098 (U.S. Aug. 18, 2009) (No. 09-213); Teamsters Local
523 v. NLRB, ___ F.3d ___, 2009 WL 4912300 (10th Cir. Dec. 22,
2009). But see Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB,
564 F.3d 469 (D.C. Cir. 2009), petition for cert. filed 78 U.S.L.W. 3185
(U.S. Sept. 29, 2009) (No. 09-377).
tively stated that the answer must be received by the Re-
gional Office on or before September 14, 2009, and that,
if no answer was filed, the Board may find, pursuant to a
motion for default judgment, that the allegations in the
consolidated complaint are true. Further, the undisputed
allegations in the General Counsel’s motion disclose that
the Region, by letter dated September 15, 2009, notified
the Respondent that unless an answer was received by
September 22, 2009, a motion for default judgment
would be filed.
In the absence of good cause being shown for the fail-
ure to file an answer or a response to the Notice to Show
Cause, we deem the allegations in the consolidated com-
plaint to be admitted as true, and 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 limited liabil-
ity company with an office and place of business in Ft.
Rucker, Alabama, has been engaged in the business of
providing grounds maintenance services to the Federal
Government at Ft. Rucker, Alabama. Annually, the Re-
spondent, in conducting its operations described above,
has provided services to the United States Government
valued in excess of $50,000. Based on these business
operations, the Respondent has a substantial impact on
the national defense of the United States.
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 Industrial Technical and Profes-
sional Employees Union, OPEIU Local 4873, 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
meaning of Section 2(11) of the Act, and agents of the
Respondent within the meaning of Section 2(13) of the
Act:
Curtis McDaniel — Owner and President
Robert Williams — Project Manager
The following employees of the Respondent (the unit)
constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of the
Act:
Including all grounds maintenance employees em-
ployed by the Respondent at its facility located in Ft.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
Rucker, Alabama. Excluding all office clerical em-
ployees, professional employees, managerial employ-
ees, guards and supervisors as defined in the Act.
Since about 2006 and at all material times, the Union
has been the designated exclusive collective-bargaining
representative of the unit and, since then, the Union has
been recognized as the representative by the Respondent.
This recognition has been embodied in successive collec-
tive-bargaining agreements, the most recent of which
was effective from April 1, 2006, until March 31, 2009.
At all times since 2006, based on Section 9(a) of the
Act, the Union has been the exclusive collective-
bargaining representative of the unit.
1. The Respondent, by Curtis McDaniel, at the Re-
spondent’s facility:
(a) About March 2009, informed its employees that it
would be futile for them to select the Union as their bar-
gaining representative by telling them that McDaniel
could do what he wanted to and the Union could not do
anything to him;2
(b) About April 2009, solicited employees to sign a
piece of paper to get rid of the Union.
2. About April or May 2009, the Respondent, by Cur-
tis McDaniel, at the Respondent’s facility, bypassed the
Union and dealt directly with its employees in the unit by
telling them that the Union was robbing them blind and
offering to pay the employees directly the $3 an hour for
their health and welfare that it was giving to the Union.
3. The Respondent, by Curtis McDaniel, at the Re-
spondent’s facility:
(a) About March 2009, told employees that the Re-
spondent was implementing a drug-testing policy that
subjected employees to termination if they refused to
participate.
(b) About March, April, or May 2009, told employees
that the Respondent was implementing a drug-testing
policy.
(c) About April 27, and again in April or May 2009,
told employees that the Respondent was giving them 1
percent of its corporation and a bonus at the end of the
year.
(d) About April or May 2009, told employees that the
Respondent would pay to them directly the $3 an hour
for health and welfare that the Respondent was giving to
the Union.
The subjects set forth above in paragraphs 2 and 3 re-
late to wages, hours, and other terms and conditions of

2 Member Schaumber notes that the Respondent’s statement was
made when it was contemporaneously telling employees it was imple-
menting unilateral changes. See pars. 3(a) and (b) below.
employment of the unit and are mandatory subjects for
the purposes of collective bargaining.
The Respondent engaged in the conduct described in
paragraphs 2 and 3 without prior notice to the Union and
without affording the Union an opportunity to bargain
with respect to this conduct and the effects of this con-
duct on the unit.
CONCLUSIONS OF LAW
1. By the conduct described above in paragraph 1, the
Respondent has interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed in
Section 7 of the Act, in violation of Section 8(a)(1) of the
Act.
2. By the conduct described above in paragraphs 2 and
3, the Respondent has failed and refused to bargain col-
lectively with the exclusive collective-bargaining repre-
sentative of its employees, in violation of Section 8(a)(5)
and (1) of the Act.3
3. 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 violated Section 8(a)(5) and
(1) of the Act by telling unit employees that it was im-
plementing a drug-testing policy, that it was giving them
1 percent of its corporation and a bonus at the end of the
year, and that it would pay to them directly the $3 an
hour for health and welfare that it was giving to the Un-
ion, we shall order the Respondent, before implementing
any changes in wages, hours, or other terms and condi-
tions of employment, to notify and, on request, bargain in
good faith with the Union as the exclusive collective-
bargaining representative of the unit employees. We
shall also order the Respondent to rescind the drug-
testing policy that it announced about March, April, or
May 2009 that it was implementing; to restore the status
quo ante; and to offer any unit employees who were dis-
charged pursuant to the policy full reinstatement to their
former positions or, if those positions no longer exist, to
substantially equivalent positions, without prejudice to

3 The consolidated complaint additionally alleged that the Respon-
dent independently violated Sec. 8(a)(1) by the conduct described in
par. 3. We find it unnecessary to decide whether the Respondent inde-
pendently violated Sec. 8(a)(1) by this conduct, because the finding of
such additional violations, being grounded on the identical facts that
support the 8(a)(5) and (1) violations, would be cumulative and would
not materially affect the remedy.
CG’S LAWN’S & JANITORIAL SERVICE, LLC 3
their seniority or any other rights or privileges previously
enjoyed. Further, we shall order the Respondent to make
any unit employees who were disciplined pursuant to the
policy whole for any loss of earnings and other benefits
suffered as a result of the Respondent’s unlawful con-
duct, with interest. Backpay shall be computed in accor-
dance with F. W. Woolworth Co., 90 NLRB 289 (1950),
with interest as prescribed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987). To the extent that dis-
cipline did not result in employees being separated from
employment, any make-whole remedy shall be in accor-
dance with Ogle Protection Service, 183 NLRB 682
(1970), enfd. 444 F.2d 502 (6th Cir. 1971). See, e.g.,
Hansen Aggregates, 353 NLRB No. 28, slip op. at 4
(2008). However, the Respondent is entitled to show, at
compliance, that it would have disciplined those employ-
ees even in the absence of the unilateral implementation
of the drug-testing policy, avoiding as to those employ-
ees any backpay and reinstatement obligation.4
The Respondent shall also be required to remove from
its files and records any and all references to the unlaw-
ful discipline, and to notify the employees in writing that
this has been done and that the unlawful discipline will
not be used against them in any way. Although the Re-
spondent is required to remove any record of its disci-
pline of an employee under a changed new policy, should
the Respondent establish at compliance that it would
have disciplined the employee even in the absence of the
unilateral implementation of the drug-testing policy, it
may maintain a record of the employee’s discipline. See
Uniserv, supra.5
ORDER
The National Labor Relations Board orders that the
Respondent, CG’s Lawn & Janitorial Service, LLC, Ft.
Rucker, Alabama, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Informing employees that it would be futile for
them to select the Union as their bargaining representa-
tive by telling them that it can do what it wants to and the
Union cannot do anything to it.
(b) Soliciting employees to sign a piece of paper to get
rid of the Union.

4 Uniserv, 351 NLRB 1361 fn. 1 (2007); Allied Aviation Fueling of
Dallas, LP, 347 NLRB 248 fn. 3 (2006), enfd. 490 F.3d 374 (5th Cir.
2007).
5 Because, as stated above, the Respondent will have the opportunity
at compliance to show that it would have discharged or disciplined
employees even absent the unilateral implementation of the drug-
testing policy, the Order and notice shall not include the requirement
that the expunction or reinstatement offers be completed “within 14
days of the date of the Board’s Order.” Allied Aviation Fuel, supra at
248 fn. 3.
(c) Bypassing the Union and dealing directly with unit
employees on the subject of health and welfare contribu-
tions.
(d) Telling unit employees that it is implementing a
drug-testing policy, that it is giving them 1 percent of its
corporation and a bonus at the end of the year, and that it
will pay to them directly the $3 an hour for health and
welfare that it is giving to the Union, without providing
the Union notice and without affording the Union an
opportunity to bargain with respect to this conduct or the
effects of this conduct.
(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) Before implementing any changes in wages, hours,
or other terms and conditions of employment, notify and,
on request, bargain in good faith with Industrial Techni-
cal and Professional Employees Union, OPEIU Local
4873, the Union, as the exclusive collective-bargaining
representative of the employees in the following appro-
priate unit. The appropriate unit is:
Including all grounds maintenance employees em-
ployed by the Respondent at its facility located in Ft.
Rucker, Alabama. Excluding all office clerical em-
ployees, professional employees, managerial employ-
ees, guards and supervisors as defined in the Act.
(b) Rescind the drug-testing policy announced about
March, April, or May 2009, and restore the status quo
ante.
(c) Offer any unit employees who were discharged
pursuant to the drug-testing policy full reinstatement to
their former positions, or, if those positions no longer
exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privi-
leges previously enjoyed.
(d) Make any unit employees who were disciplined
pursuant to the drug-testing policy whole for any loss of
earnings and other benefits suffered as a result of the
unlawful discipline, in the manner set forth in the remedy
section of the decision.
(e) Remove from its files any reference to any unlaw-
ful discipline, and within 3 days thereafter notify the em-
ployees in writing that this has been done and that the
unlawful discipline will not be used against them 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-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amounts of backpay due
under the terms of this Order.
(g) Within 14 days after service by the Region, post at
its facility in Ft. Rucker, Alabama, copies of the attached
notice marked “Appendix.”6 Copies of the notice, on
forms provided by the Regional Director for Region 15,
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,
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent 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 Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since March 2009.
(h) Within 21 days after service the Region, file with
the Regional Director a sworn certification of a responsi-
ble official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply.
Dated, Washington, D.C. January 4, 2010
______________________________________
Wilma B. Liebman, Chairman
______________________________________
Peter C. Schaumber, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO MEMBERS
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

6 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.”
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 inform our employees that it would be
futile for them to select the Union as their bargaining
representative by telling the employees that we can do
what we want to and the Union cannot do anything to us.
WE WILL NOT solicit our employees to sign a piece of
paper to get rid of the Union.
WE WILL NOT bypass the Union and deal directly with
our unit employees on the subject of health and welfare
contributions.
WE WILL NOT tell our unit employees that we are im-
plementing a drug-testing policy, that we are giving them
1 percent of our corporation and a bonus at the end of the
year, or that we will pay to them directly the $3 an hour
for health and welfare that we are giving to the Union,
without providing the Union notice and without afford-
ing the Union an opportunity to bargain with respect to
this conduct or the effects of this conduct.
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, before implementing any changes in wages,
hours, or other terms and conditions of employment, no-
tify and, on request, bargain in good faith with the Indus-
trial Technical and Professional Employees Union,
OPEIU Local 4873, the Union, as the exclusive collec-
tive-bargaining representative of the employees in the
following appropriate unit. The appropriate unit is:
Including all grounds maintenance employees em-
ployed by us at our facility located in Ft. Rucker, Ala-
bama. Excluding all office clerical employees, profes-
sional employees, managerial employees, guards and
supervisors as defined in the Act.
WE WILL rescind the drug-testing policy that we an-
nounced about March, April, or May 2009, and restore
the status quo ante.
WE WILL offer any unit employees who were dis-
charged pursuant to the drug-testing policy full rein-
statement to their former positions or, if those positions
no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights or
privileges previously enjoyed.
WE WILL make any unit employees who were disci-
plined pursuant to the drug-testing policy whole for any
CG’S LAWN’S & JANITORIAL SERVICE, LLC 5
loss of earnings and other benefits suffered as a result of
the unlawful discipline, with interest.
WE WILL remove from our files any reference to any
unlawful discipline and, WE WILL within 3 days thereafter
notify the employees in writing that this has been done
and that the unlawful discipline will not be used against
them in any way.
CG’S LAWN & JANITORIAL SERVICE, LLC