County Agency Inc.

National Labor Relations Board - Board Decisions

Oct 28, 2015

363 NLRB No. 26 (N.L.R.B. 2015)

363 NLRB No. 26
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.
County Agency, Inc. and United Food and Commer-
cial Workers, Local 2013. Case 29–CA–142690
October 28, 2015
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND HIROZAWA
The General Counsel seeks a default judgment in this
case pursuant to the terms of an informal settlement
agreement. Upon a charge and an amended charge filed
by United Food and Commercial Workers, Local 2013
(the Union) on December 11, 2014, and February 13,
2015, respectively, alleging that the Respondent violated
Section 8(a)(5) and (1) of the Act, the Respondent and
the Union entered into an informal settlement agreement
on February 20, 2015, which was approved by the Re-
gional Director for Region 29 on the same date. The
settlement agreement required the Respondent to: (1)
upon request, bargain with the Union as the exclusive
collective-bargaining representative of the unit employ-
ees; (2) provide the Union with the presumptively rele-
vant information it requested on September 22, 2014;
and (3) post appropriate notices.
The settlement agreement also contained the following
provision:
The Charged Party agrees that in case of non-
compliance with any of the terms of this Settlement
Agreement by the Charged Party, and after 14 days no-
tice from the Regional Director of the National Labor
Relations Board of such non-compliance without rem-
edy by the Charged Party, the Regional Director will
issue a complaint that includes the allegations covered
by the Notice to Employees, as identified above in the
Scope of Agreement section, as well as filing and ser-
vice of the charge(s), commerce facts necessary to es-
tablish Board jurisdiction, labor organization status,
appropriate bargaining unit (if applicable), and any oth-
er allegations the General Counsel would ordinarily
plead to establish the unfair labor practices. Thereafter,
the General Counsel may file a Motion for Default
Judgment with the Board on the allegations of the
Complaint. The Charged Party understands and agrees
that all of the allegations of the Complaint will be
deemed admitted and that it will have waived its right
to file an Answer to such Complaint. The only issue
that the Charged Party may raise before the Board will
be whether it defaulted on the terms of this Settlement
Agreement. The General Counsel may seek, and the
Board may impose, a full remedy for each unfair labor
practice identified in the Notice to Employees. The
Board may then, without necessity of trial or any other
proceeding, find all allegations of the Complaint to be
true and make findings of fact and conclusions of law
consistent with those allegations adverse to the
Charged Party 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 en-
forcing the Board Order ex parte, after service or at-
tempted service upon Charged Party at the last address
provided to the General Counsel.
By letter dated February 27, 2015, the Regional Direc-
tor for Region 29 advised the Respondent to take the
steps necessary to comply with the terms of the settle-
ment agreement. By email dated March 26, 2015, the
compliance officer for Region 29 advised the Respond-
ent that it had not documented its compliance with its
obligations under the settlement agreement and advised
the Respondent that documentation of the following was
due: (1) notice posting processing and completion of the
required Certification of Posting form; (2) providing the
Union with the information it requested; and (3) main-
taining a record of all relevant correspondence regarding
bargaining with the Union. Although the Respondent’s
counsel replied that he hoped to have all appropriate sig-
natures by the following Monday, the Respondent did
not comply. By letter dated April 14, 2015, the Acting
Regional Director for Region 29 notified the Respondent
of its default under the terms of the settlement agree-
ment. The letter also stated that, if the Respondent did
not cure its default by April 28, 2015, the Regional Di-
rector would revoke the settlement agreement and issue a
complaint, and he would thereafter seek default judgment
on the allegations of the complaint. The Respondent did
not respond to the letter.
Accordingly, pursuant to the terms of the noncompli-
ance provisions of the settlement agreement, on May 19,
2015, the Regional Director issued an order revoking the
settlement agreement, and a complaint and notice of
hearing. The Respondent filed an answer. On June 16,
2015, the General Counsel filed a Motion for Default
Judgment with the Board. On June 24, 2015, the Board
issued an order transferring the proceeding to the Board
and Notice to Show Cause why the motion should not be
granted. The Respondent filed a response.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Ruling on Motion for Default Judgment
In its response to the Notice to Show Cause, the Re-
spondent asserts that the Board should not grant the Gen-
eral Counsel’s motion but should instead direct the Re-
gional Director to reinstate the settlement agreement with
the caveat that the Respondent must wholly comply with
its terms within 30 days of reinstatement, or hold a hear-
ing on the allegations in the complaint. The Respondent
argues that it never sought to actively defy the Board or
the dictates of the Act, the complaint allegations were
baseless and were promptly denied, and the settlement
agreement explicitly contained a nonadmission clause.
Further, given its “consistent denials of wrongdoing un-
der the Act,” the Respondent contends that the requested
relief “is wholly inappropriate, notwithstanding the lan-
guage of the Informal Settlement Agreement.” In addi-
tion, although the Respondent admits that it has not pro-
vided the Union with requested information or posted the
notices required by the settlement agreement, the Re-
spondent denies that it failed or refused to bargain with
the Union. The Respondent asserts that it must now wait
for a court-enforced Board Order before complying with
the settlement agreement that has been revoked, and it
wishes to have an opportunity to comply with the settle-
ment agreement “in the interests of maintaining a colle-
gial relationship with the Union.”
The noncompliance provision in the settlement agree-
ment provides that “[t]he Charged Party understands and
agrees that all of the allegations of the Complaint will be
deemed admitted and that it will have waived its right to
file an Answer to such Complaint.”1 In addition, the
noncompliance provision in the settlement agreement
provides that “[t]he only issue that the Charged Party
may raise before the Board will be whether it defaulted
on the terms of this Settlement Agreement.” The agree-
ment further provides that “[t]he Board may then, with-
out necessity of trial or any other proceeding, find all
allegations of the Complaint to be true and make findings
of fact and conclusions of law consistent with those alle-
gations adverse to the Charged Party on all issues raised
by the pleadings.”
As described above, the General Counsel alleges that
the Respondent has failed to comply with the terms of
the settlement agreement by failing to provide the Union
with the requested information, failing to bargain with
the Union, and failing to send to the Regional Office
signed copies of the Notice to Employees along with a
certification of posting. Importantly, as noted above, the

1 Accordingly, because the Respondent has waived its right to file
an answer, we strike the Respondent’s answer. Member Miscimarra
finds it unnecessary to address this issue. See fn. 2, below.
Respondent admits in its response to the Notice to Show
Cause that it failed to provide the Union with the re-
quested information and that it failed to post the Notice
to Employees. Moreover, the Respondent provides no
support for its general denial that it failed to bargain with
the Union and its admissions establish that it did not
comply with its obligations under the settlement agree-
ment. Consequently, pursuant to the noncompliance
provisions of the settlement agreement set forth above,
we find that all of the allegations in the complaint are
true.2 Accordingly, we grant the General Counsel’s Mo-
tion for Default Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent has been a do-
mestic corporation, with its principal office and place of
business located at 129 South 8th Street, Brooklyn, New
York, and has been providing Professional Employer
Organization services, including provision of personnel
and other human resources functions to customers.
During the 12-month period preceding issuance of the
complaint, which is representative of its annual opera-
tions in general, the Respondent has provided services
valued in excess of $50,000 to its customers in the State
of New York, which each meet a Board direct test for the
assertion of jurisdiction.

2 See U-Bee, Ltd., 315 NLRB 667, 668 (1994).
Member Miscimarra joins in the entry of a default judgment alt-
hough two aspects of this disposition warrant explanation. First, Re-
spondent’s response to the Notice to Show Cause confirms that the
Respondent failed to comply with the settlement agreement, and the
settlement agreement clearly provides that, in the event of a breach, (i)
the Regional Director would issue a complaint based on the same alle-
gations, (ii) “all of the allegations of the Complaint will be deemed
admitted” and the “only issue that the [Respondent] may raise before
the Board will be whether it defaulted on the terms of [the] Settlement
Agreement,” (iii) the Respondent “will have waived its right to file an
Answer to such Complaint,” (iv) the General Counsel “may file a
Motion for Default Judgment . . . ,” and (v) the Board may “find all
allegations of the Complaint to be true and make findings of fact and
conclusions of law consistent with those allegations adverse to the
[Respondent] on all issues raised by the pleadings.” Because Respond-
ent admitted its failure to comply with the settlement agreement, and
because the settlement agreement clearly details the consequences of
noncompliance, Member Miscimarra believes these circumstances
warrant the entry of a default judgment. Second, although the settle-
ment agreement provides that the Respondent waives any “right to file
an Answer to [the] Complaint,” the Regional Director’s complaint
stated (contrary to the settlement agreement) that the Respondent “must
file an answer to the complaint,” and the Respondent filed an answer.
Member Miscimarra finds it unnecessary to decide whether Respond-
ent’s answer must be stricken because the settlement agreement states
all complaint allegations “will be deemed admitted” in the event of
noncompliance, and Respondent (as noted above) has admitted its
noncompliance with the settlement agreement.
COUNTY AGENCY, INC. 3
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 the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
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:
All full-time and part-time employees excluding execu-
tives, supervisors, and guards as defined in the Labor
Management Relations Act, as amended.
At all material times, the Charging Party has been the
designated collective-bargaining representative of the
unit. Such recognition has been embodied in a collec-
tive-bargaining agreement, which by its terms was effec-
tive from February 1, 2012, to January 31, 2015.
At all material times, the Charging Party, by virtue of
Section 9(a) of the Act, has been the exclusive collective-
bargaining representative of the unit.
About September 22, 2014, the Charging Party re-
quested that the Respondent bargain collectively over the
terms of a successor collective-bargaining agreement.
Since about September 22, 2014, the Respondent has
failed and refused to bargain collectively about the sub-
jects set forth above.
The subjects set forth above relate to the wages, hours,
and other terms and conditions of employment of the unit
and are mandatory subjects for the purposes of collective
bargaining.
Since about September 22, 2014, the Charging Party
has requested in writing that the Respondent furnish the
Charging Party with the following information:
1. Name, title, address, telephone number, and email of
any person who is required to approve any bargained-
for provision of any collective-bargaining agreement
between UFCW Local 2013 and the above listed com-
pany;
2. Name, title, address, telephone number, and email of
any person who determines labor relations policy with
regard to the collective-bargaining agreement;
3. Name, address, telephone number, date of hire, clas-
sification, rate of pay, date of birth, sex (M/F), marital
status, full-time or part-time status, termination date (if
applicable), and number of dependents for each em-
ployee in the bargaining unit;
4. A complete structure of job classification and de-
scriptions and responsibilities for each;
5. Average weekly number of employees and hours
worked at each classification and rate;
6. Copy of all company policies; (i.e.) vacation, over-
time, holidays
7. Copy of employee handbook;
8. Copy of all disciplinary policies;
9. Copy of FMLA polices and/or procedures;
10. A roster of bargaining unit employees’ health &
welfare and annuity contributions;
11. Copy of new hire orientation packets;
12. Copy of OSHA 300 log for the past contract term.
The information requested by the Charging Party, as
described above, is necessary for, and relevant to, the
Union’s performance of its duties as the exclusive collec-
tive-bargaining representative of the unit.
Since about December 10, 2014, the Respondent has
failed and refused to furnish the Union with the infor-
mation requested by it as described above.
CONCLUSION OF LAW
By the conduct described above, the Respondent has
been failing and refusing to bargain collectively and in
good faith with the exclusive collective-bargaining repre-
sentative of its employees, in violation 8(a)(5) and (1) of
the Act. The Respondent’s unfair labor practices de-
scribed above affect commerce within the meaning of
Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act. Specifically, having
found that the Respondent has violated Section 8(a)(5)
and (1) by failing and refusing to provide information to
the Union that is necessary and relevant to the Union’s
performance of its duties as the exclusive collective-
bargaining representative of the unit employees, we shall
order the Respondent to furnish the Union with the in-
formation that it requested about September 22, 2014. In
addition, having found that the Respondent violated Sec-
tion 8(a)(5) and (1) of the Act by refusing to bargain col-
lectively over the terms of a successor collective-
bargaining agreement, we shall order the Respondent to
bargain with the Union, on request, as the exclusive col-
lective-bargaining representative of the unit employees
concerning terms and conditions of employment and, if
an understanding is reached, to embody the understand-
ing in a signed agreement.
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ORDER
The National Labor Relations Board orders that the
Respondent, County Agency, Inc., Maspeth, New York,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain with United Food
and Commercial Workers, Local 2013 (the Union) as the
exclusive collective-bargaining representative of the em-
ployees in the following appropriate unit:
All full-time and part-time employees excluding execu-
tives, supervisors, and guards as defined in the Labor
Management Relations Act, as amended.
(b) Failing and refusing to provide the Union with re-
quested information that is necessary for, and relevant to,
the Union’s performance of its duties as the exclusive
collective-bargaining representative of the unit.
(c) 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) On request, bargain with the Union as the exclu-
sive collective-bargaining representative of the unit em-
ployees concerning terms and conditions of employment
and, if an understanding is reached, embody the under-
standing in a signed agreement.
(b) Furnish the Union with the information it request-
ed about September 22, 2014.
(c) Within 14 days after service by the Region, post at
its facility in Maspeth, New York, copies of the attached
notice marked “Appendix.”3 Copies of the notice, on
forms provided by the Regional Director for Region 29,
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. In addition to physical posting of paper
notices, notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent custom-
arily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material. If the Respondent has gone
out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at

3 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.”
its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Re-
spondent at any time since September 22, 2014.
(d) Within 21 days after service by the Region, file
with the Regional Director for Region 29 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. October 28, 2015
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Philip A. Miscimarra, Member
______________________________________
Kent Y. Hirozawa, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
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 and refuse to bargain with United
Food and Commercial Workers, Local 2013 as the exclu-
sive collective-bargaining representative of our employ-
ees in the following appropriate bargaining unit:
All full-time and part-time employees excluding execu-
tives, supervisors, and guards as defined in the Labor
Management Relations Act, as amended.
COUNTY AGENCY, INC. 5
WE WILL NOT fail and refuse to provide the Union with
requested information that is necessary for, and relevant
to, the Union’s performance of its duties as the exclusive
collective-bargaining representative of the unit.
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, on request, bargain with United Food and
Commercial Workers, Local 2013 as the exclusive col-
lective-bargaining representative of the employees in the
unit concerning terms and conditions of employment,
and WE WILL put in writing and sign any agreement
reached.
WE WILL furnish the Union with the information it re-
quested about September 22, 2014.
COUNTY AGENCY, INC.
The Board’s decision can be found at
www.nlrb.gov/case/29-CA-142690 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.