JT Bay, LLC d/b/a Performance Cleaning Group

National Labor Relations Board - Board Decisions

May 2, 2014

360 NLRB No. 99 (N.L.R.B. 2014)

360 NLRB No. 99
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the
Executive 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.
JT Bay, LLC d/b/a Performance Cleaning Group and
Local 32BJ, Service Employees International
Union. Case 12–CA–075591
May 2, 2014
DECISION AND ORDER
BY MEMBERS HIROZAWA, JOHNSON,
AND SCHIFFER
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 Local 32BJ, Service Employees International Union
(the Union) on February 27 and October 11, 2012, re-
spectively, the General Counsel issued the complaint on
December 31, 2012, against JT Bay, LLC d/b/a Perfor-
mance Cleaning Group (the Respondent), alleging that
the Respondent violated Section 8(a)(5) and (1) of the
Act. The Respondent filed an answer to the complaint
on January 14, 2013.
Subsequently, on March 13, 2013, the Respondent and
the Union entered into an informal settlement agreement,
which was approved by the Regional Director for Region
12 on March 26, 2013. Among other things, the settle-
ment agreement required the Respondent to: (1) make
discriminatees Jorge Hernandez, Isolina Recio, Maria
Reyes, Dayami Rodriguez, and Manuel Zambrano whole
for their loss of wages and other monetary benefits by
paying them specified amounts of backpay and interest;
(2) recognize and bargain with the Union and put in writ-
ing and sign any agreement reached with respect to wag-
es, hours, and other terms and conditions of employment
for the unit employees; 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
reissue the complaint previously issued on [date] [sic]
in the instant case(s). 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 allegations of the
aforementioned complaint will be deemed admitted
and its Answer to such complaint will be considered
withdrawn. The only issue that may be raised before
the Board is whether the Charged Party defaulted on
the terms of this Settlement Agreement. The Board
may then, without necessity of trial or any other pro-
ceeding, find all allegations of the complaint to be true
and make findings of fact and conclusions of law con-
sistent 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 viola-
tions. 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 Party/Respondent at the last address provided
to the General Counsel.
By letter dated March 28, 2013, the Regional Director
for Region 12 advised the Respondent to take the steps
necessary to comply with the terms of the settlement
agreement. By letter dated May 15, 2013, the Regional
Director for Region 12 reminded the Respondent of its
obligations under the settlement agreement and advised
the Respondent that although the Region received the
certification of posting and signed notices in English, the
Respondent has failed to (1) remit backpay; (2) return
signed and dated notices in Spanish or any information
concerning whether the Respondent electronically posted
or distributed the notices; and (3) notify the Region of
the steps it has taken to recognize and bargain with the
Union and otherwise comply with the settlement agree-
ment. The letter also stated that, if the Respondent did
not comply within 14 days, (1) the Respondent’s failure
to comply may result in the Regional Director reissuing
the complaint; and (2) the Acting General Counsel may
file 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 August
2, 2013, the Regional Director reissued the complaint.
By letter dated November 5, 2013, the Regional Director
for Region 12 again reminded the Respondent of its obli-
gations under the settlement agreement and advised the
Respondent of its noncompliance, extending the oppor-
tunity to comply with the settlement agreement or file an
answer to the reissued complaint to November 12, 2013.
The Respondent failed to respond.1 On November 21,

1 The motion for default judgment indicates that the Region sent its
correspondence to the Respondent by certified and regular mail, as well
as electronic mail, to multiple addresses, including the address listed in
the Respondent’s 2013 Annual Report filed with the State of Florida
Department of State, but many of the mailings were returned as unde-
liverable. It is well settled that a respondent’s failure or refusal to
accept certified mail or to provide for receiving appropriate service
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2
2013, the General Counsel filed a Motion for Default
Judgment with the Board. On November 25, 2013, 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 no response. The
allegations 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 Respondent has failed to
comply with the terms of the settlement agreement by
failing to remit the full amount of the agreed-upon
backpay and interest to Jorge Hernandez, Isolina Recio,
Maria Reyes, Dayami Rodriguez, and Manuel Zambrano
and failing to send to the Regional Office a signed and
dated Notice to Employees in Spanish along with a certi-
fication of posting. Consequently, pursuant to the non-
compliance provisions of the settlement agreement set
forth above, we find that the Respondent’s answer to the
original complaint has been withdrawn and that all of the
allegations in the reissued complaint are true.2 Accord-
ingly, we grant the General Counsel’s Motion for Default
Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
About October 1, 2011, pursuant to a contract with the
City of Miami Beach, Florida, the Respondent began
operations at Scott Rakow Youth Center, North Shore
Recreation and Tennis Center, and Flamingo Park Base-
ball and Football Stadium and Softball Field restrooms in
the City of Miami Beach, Florida, all of which work had
previously been performed by Vista Building Mainte-
nance Services, Inc. (Vista); since then, the Respondent
has performed that work in basically unchanged form;
and the Respondent has employed as a majority of its
employees individuals who were previously employees
of Vista.
Based on its operations described above, the Respond-
ent has continued the employing entity and is a successor
to Vista.

cannot serve to defeat the purposes of the Act. See Cray Construction
Group, LLC, 341 NLRB 944, 944 fn. 5 (2004); I.C.E. Electric, Inc.,
339 NLRB 247, 247 fn. 2 (2003). Further, the failure of the Postal
Service to return documents served by regular mail indicates actual
receipt of those documents by the Respondent. Id.; Lite Flight, Inc.,
285 NLRB 649, 650 (1987), enfd. 843 F.2d 1392 (6th Cir. 1988). In
addition, we note that the settlement agreement provides for entry of a
court judgment “after service or attempted service upon Charged Par-
ty/Respondent at the last address provided to the General Counsel.”
2 See U-Bee, Ltd., 315 NLRB 667, 668 (1994).
At all material times, the Respondent, a Florida corpo-
ration with an office and place of business in Tampa,
Florida, has been engaged in the business of providing
commercial cleaning services in various locations in the
State of Florida.
During the calendar year preceding issuance of the
complaint, in conducting its business operations de-
scribed above, the Respondent derived gross revenues in
excess of $1 million and provided services valued in ex-
cess of $50,000 to customers in the State of Florida that
are directly engaged in interstate commerce.
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:
Daniel Gorritz Partner in Business Develop-
ment
Luis Ortega Senior 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:
All employees employed at the Scott Rakow Youth
Center, North Shore Recreation and Tennis Center, and
Flamingo Park Baseball and Football Stadium and
Softball Field Restrooms in the City of Miami Beach,
excluding supervisors, managers, clerical, administra-
tive, and confidential employees as defined in the Act.
From about May 6 until about September 30, 2011,
the Union was the exclusive collective-bargaining repre-
sentative of a unit of employees employed by Vista,
which included the employees described above, and dur-
ing that period of time the Union had been voluntarily
recognized as such representative by Vista. This recog-
nition was embodied in a collective-bargaining agree-
ment, effective by its terms from May 6, 2011 to May 5,
2015, between the Union and Vista.
Since about October 1, 2011, at which time the Re-
spondent took over as a successor to Vista performing
commercial cleaning services pursuant to a contract with
the City of Miami Beach, Florida, the Union has been the
3
PERFORMANCE CLEANING GROUP
exclusive collective-bargaining representative of the unit
employed by the Respondent.
From about May 6 to about October 1, 2011, based on
Section 9(a) of the Act, the Union was the exclusive col-
lective-bargaining representative of a unit of employees
employed by Vista, which included the employees de-
scribed above.
At all material times, and since about October 1, 2011,
based on Section 9(a) of the Act, the Union has been the
exclusive collective-bargaining representative of the Re-
spondent’s employees in the unit.
By letters dated May 26, July 18, and November 1,
2011, the Union requested that the Respondent recognize
it as the exclusive collective-bargaining representative of
the unit and bargain collectively with it as the collective-
bargaining representative of the unit.
Since about October 1, 2011, the Respondent has
failed and refused to recognize and bargain with the Un-
ion as the exclusive collective-bargaining representative
of the unit.
On about October 1, 2011, the Respondent unilaterally
implemented initial terms and conditions of employment,
which included changes to the unit’s work schedules and
cessation of benefits such as holiday pay and health in-
surance.
The subjects set forth above relate to wages, hours, and
other terms and conditions of employment of the unit and
are mandatory subjects of bargaining for the purposes of
collective bargaining.
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
Respondent with respect to this conduct.
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 described above affect commerce within the mean-
ing 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, the Re-
spondent shall comply with the terms of the settlement
agreement approved by the Regional Director for Region
12 on March 26, 2013, by recognizing and bargaining
with the Union as the exclusive collective-bargaining
representative of the unit employees; rescinding the uni-
lateral changes in terms and conditions of employment
and restoring the status quo ante with regard to work
schedules and cessation of benefits such as holiday pay
and health insurance, until such time as the Respondent
and the Union reach an agreement for a new collective-
bargaining agreement or a lawful impasse based on
good-faith negotiations; and making discriminates Jorge
Hernandez, Isolina Recio, Maria Reyes, Dayami Rodri-
guez, and Manuel Zambrano whole by the payment of
backpay and interest provided for in the settlement
agreement, plus interest accrued to the date of payment at
the rate prescribed in New Horizons for the Retarded,
283 NLRB 1173 (1987), compounded daily as prescribed
in Kentucky River Medical Center, 356 NLRB No. 8
(2010).
In addition, we shall order the Respondent to reim-
burse the unit employees in an amount equal to the dif-
ferences in taxes owed upon receipt of a lump-sum
backpay payment and taxes that would have been owed
had the Respondent not violated Section 8(a)(5) as con-
cluded above. We shall also order the Respondent to
submit the appropriate documentation to the Social Secu-
rity Administration so that when backpay is paid, it will
be allocated to the appropriate periods.
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 within this remedy.4
ORDER
The National Labor Relations Board orders that the
Respondent, JT Bay, LLC d/b/a Performance Cleaning,
Tampa, Florida, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with
Local 32BJ, Service Employees International Union (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 that the Board “make whole unit employees . . . for the losses
they suffered because of the elimination of their paid holidays and
health insurance coverage option, and changes to their work schedules,
by the payment to those employees of the backpay and interest amounts
provided for in the Settlement Agreement [and by requiring additional
interest on backpay].”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4
Union) as the exclusive collective-bargaining representa-
tive of the employees in the bargaining unit. The appro-
priate unit is:
All employees employed at the Scott Rakow Youth
Center, North Shore Recreation and Tennis Center, and
Flamingo Park Baseball and Football Stadium and
Softball Field Restrooms in the City of Miami Beach,
excluding supervisors, managers, clerical, administra-
tive, and confidential employees as defined in the Act.
(b) Making unilateral changes of initial terms and
conditions of employment, including changes to the
unit’s work schedules and cessation of benefits such as
holiday pay and health insurance.
(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) Rescind the unilateral changes in terms and condi-
tions of employment and restore the status quo ante with
regard to work schedules and cessation of benefits such
as holiday pay and health insurance, until such time as
the Respondent and the Union reach an agreement for a
new collective-bargaining agreement or a lawful impasse
based on good-faith negotiations.
(c) Make whole the employees named below for any
loss of earnings and other benefits suffered as a result of
the unlawful actions against them, by payment to each of
them of the backpay and interest amounts shown, with
interest accrued to the date of payment, in accordance
with the terms of the settlement agreement approved by
the Regional Director on March 26, 2013:
Backpay Interest Total
Jorge
Hernandez
$487 $14 $501
Isolina
Recio
$797 $16 $813
Maria
Reyes
$797 $16 $813
Dayami
Rodriguez
$797 $16 $813
Manuel
Zambrano
$797 $16 $813
Total Amount due $3753
(d) Compensate the unit employees for the adverse tax
consequences, if any, of receiving a lump-sum backpay
award, in the manner set forth in the remedy section of
this decision, and file a report with the Social Security
Administration allocating the backpay award to the ap-
propriate calendar quarters.
(e) Within 21 days after service by the Region, file
with the Regional Director for Region 12 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., May 2, 2014
______________________________________
Kent Y. Hirozawa, Member
______________________________________
Harry I. Johnson, III, Member
______________________________________
Nancy Schiffer, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD