D2 Abatement, Inc.

National Labor Relations Board - Board Decisions

Sep 24, 2014

361 NLRB No. 51 (N.L.R.B. 2014)

361 NLRB No. 51
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.
D2 Abatement, Inc. and Teamsters Local 838 affiliat-
ed with International Brotherhood of Team-
sters. Case 14–CA–106806
September 24, 2014
DECISION AND ORDER
BY MEMBERS MISCIMARRA, HIROZAWA, AND JOHNSON
The General Counsel seeks a default judgment in this
case pursuant to the terms of an informal settlement
agreement. Upon a charge filed by Teamsters Local 838
affiliated with International Brotherhood of Teamsters
(the Union), on June 10, 2013, and an amended charge
filed by the Union on August 12, 2013, the General
Counsel issued the complaint on August 26, 2013,
against D2 Abatement, Inc. (the Respondent), alleging
that it violated Section 8(a)(5) and (1) of the Act.
Subsequently, the Respondent executed an informal
settlement agreement, which was approved by the Re-
gional Director for Region 14 on October 31, 2013. Pur-
suant to the terms of the settlement agreement, the Re-
spondent agreed, among other things, to reimburse cer-
tain named employees for medical expenses incurred
between February 13, 2013, and August 1, 2013, to be
paid in equal monthly installments to the Region begin-
ning on November 15, 2013.1
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
reissue the complaint previously issued on August 26,
2013, in the instant case. 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 the allega-
tions of the aforementioned complaint will be deemed
admitted and its Answer to such complaint will be con-
sidered withdrawn. The only issue that may be raised
before the Board is whether the Charged Party default-

1 By letter dated January 7, 2014, the Respondent executed a modifi-
cation to the terms of the installment payment plan (the modified in-
stallment agreement), which was approved by the Regional Director on
January 7, 2014. The modified installment agreement only affected the
amounts of the installment payments.
ed on the terms of this Settlement Agreement. 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/Respondent at the
last address provided to the General Counsel.
By email dated May 15, 2014, the compliance assistant
for the Region reminded the Respondent of its obligation
to submit the scheduled installment payment to the Re-
gion on May 15, 2014. The email further advised the
Respondent that failure to timely remit payment may
culminate in the initiation of default proceedings.
By letter dated May 23, 2014, the Regional Director
informed the Respondent that it had still failed to comply
with the financial terms of the settlement agreement and
the modified installment agreement by failing to submit
its scheduled installment payment to the Region on May
15, 2014. The letter reminded the Respondent that the
settlement agreement provided that, in the event of de-
fault on the installment schedule, the total amounts owed,
less any amounts paid, would become immediately due
and payable. The letter further advised the Respondent
that, if its noncompliance was not cured by June 6, 2014,
the Region would initiate default proceedings, including
reissuing the complaint previously issued on August 26,
2013, and filing a motion for default judgment with the
Board. The Respondent failed to comply.
Accordingly, pursuant to the terms of the noncompli-
ance provisions of the settlement agreement, on June 17,
2014, the Regional Director reissued the complaint. Also
on June 17, the General Counsel filed a Motion for De-
fault Judgment with the Board. On June 19, 2014, 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 re-
sponse. The allegations in the motion are therefore un-
disputed.
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 Respondent has failed to
comply with the financial terms of the settlement agree-
ment and the modified installment agreement by failing
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
to make the required medical expense reimbursements.
Consequently, pursuant to the noncompliance provisions
of the settlement agreement set forth above, we find that
the Respondent’s answer to the original complaint has
been withdrawn and all of the allegations in the reissued
complaint are true.2 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, the Respondent has been a cor-
poration with an office and place of business in
Claycomo, Missouri, and has been engaged in asbestos
and lead abatement, industrial cleaning, and recycling
operations.
In conducting its operations, during the 12-month pe-
riod ending June 30, 2013, the Respondent performed
services valued in excess of $50,000 in states other than
the State of Missouri, and purchased and received at its
Claycomo, Missouri facility goods valued in excess of
$50,000 directly from points outside the State of Mis-
souri.
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
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:
Duane Jones President
Kenneth Pope Supervisor
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 warehouse equipment operators who are employed
by Respondent in the Recycle Center at the Ford Kan-
sas City Assembly Plant located in Kansas City, Mis-
souri, excluding supervisors as defined by the Act.
Since about 2007, and at all material times, the Re-
spondent has recognized the Union as the exclusive col-
lective-bargaining representative of the unit. This recog-

2 See U-Bee, Ltd., 315 NLRB 667 (1994).
nition has been embodied in successive collective-
bargaining agreements, the most recent of which is effec-
tive from January 7, 2013 to January 6, 2015. At all
times since about 2007, based on Section 9(a) of the Act,
the Union has been the exclusive collective-bargaining
representative of the unit.
Since about January 7, 2013, the Respondent failed to
continue in effect all the terms and conditions of the col-
lective-bargaining agreement by failing to maintain em-
ployees’ health, vision, and dental benefits and by failing
to remit to the Union dues deducted from employees’
paychecks.
The terms and conditions of employment described
above are mandatory subjects for the purposes of collec-
tive bargaining. The Respondent engaged in the conduct
described above without the Union’s consent.
About early to mid-June 2013, the Respondent, by
Kenneth Pope, at the Respondent’s facility, bypassed the
Union and dealt directly with its employees in the unit by
requesting that employees complete forms to change
their health, dental, and vision insurance provider.
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 of Section 8(a)(5)
and (1) of the Act. The Respondent’s unfair labor prac-
tices 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 take cer-
tain affirmative action designed to effectuate the policies
of the Act. Specifically, the Respondent shall comply
with the remaining unmet financial terms of the settle-
ment agreement approved by the Regional Director for
Region 14 on October 31, 2013, and the modified in-
stallment payment agreement on January 7, 2014, by
reimbursing employees Darren Wilson and Brian Luna
for the remaining balance of their medical expenses in-
curred between February 13 and August 1, 2013, imme-
diately and in full. Accordingly, we shall order the Re-
spondent immediately to remit the full $6550.81 remain-
ing due to the Region (Darren Wilson being owed $1017
and Brian Luna being owed $5533.81), along with any
additional fees or expenses incurred by Wilson and Luna
based on the Respondent’s failure to comply with the
terms of the settlement agreement and the modified in-
stallment agreement, with interest at the rate prescribed
in New Horizons for the Retarded, 283 NLRB 1173
D2 ABATEMENT, INC. 3
(1987), compounded daily as prescribed in Kentucky
River Medical Center, 356 NLRB No. 8 (2010).
Additionally, we shall order the Respondent to com-
pensate Wilson and Luna for the adverse tax conse-
quences, if any, of receiving lump-sum amounts and to
file a report with the Social Security Administration allo-
cating the amounts to the appropriate calendar quarters
for employees. Don Chavas, LLC d/b/a Tortillas Don
Chavas, 361 NLRB No. 10 (2014).
In limiting our affirmative remedies to those enumer-
ated above, we are mindful that the General Counsel is
empowered under the default provision of the settlement
agreement to seek “a full remedy for the violations found
as is appropriate to remedy such violations,” including
backpay beyond that specified in the agreement.3 How-
ever, in his Motion for Default Judgment, the General
Counsel has not sought such additional remedies and we
will not, sua sponte, include them.4
ORDER
The National Labor Relations Board orders that the
Respondent, D2 Abatement, Inc., Kansas City, Missouri,
its officers, agents, successors, and assigns, shall take the
following affirmative action necessary to effectuate the
policies of the Act.
Remit $6550.81, and any additional fees or expenses
incurred by Darren Wilson and Brian Luna based on the

3 As set forth above, the settlement agreement provided that, in case
of noncompliance, the Board could “issue an order providing a full
remedy for the violations found as is appropriate to remedy such viola-
tions.”
4 See, e.g., Benchmark Mechanical, Inc., 348 NLRB 576 (2006).
The General Counsel specifically requested in his motion for default
judgment here that the Board “issue an appropriate Remedial Order,
including the full payment of remaining medical expenses reimburse-
ments . . . . plus interest and any additional fees or expenses incurred by
Mr. Wilson and Mr. Luna based on Respondent’s failure to comply
with the terms of the Settlement Agreement.”
Respondent’s failure to comply with the terms of the
settlement agreement and the modified installment
agreement, plus interest in the manner set forth in the
remedy section of this decision, to Region 14 of the Na-
tional Labor Relations Board to be disbursed to Darren
Wilson and Brian Luna, in accordance with the terms of
the settlement agreement and the modified installment
agreement approved by the Regional Director on October
31, 2013, and January 7, 2014, respectively.
Compensate Darren Wilson and Brian Luna for the
adverse tax consequences, if any, of receiving lump-sum
payments, and file a report with the Social Security Ad-
ministration allocating the backpay awards to the appro-
priate calendar quarters for each employee.
3. Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
Dated, Washington, D.C. September 24, 2014
______________________________________
Phillip A. Miscimarra, Member
______________________________________
Kent Y. Hirozawa, Member
______________________________________
Harry I. Johnson, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD