Kelaye Concrete LLC

National Labor Relations Board - Board Decisions

Sep 19, 2016

364 NLRB No. 123 (N.L.R.B. 2016)

364 NLRB No. 123
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.
Kelaye Concrete LLC and Operative Plasterers’ and
Cement Masons’ Union, Local 528, affiliated
with Operative Plasterers’ and Cement Masons’
Inter National Association, AFL–CIO. Cases
19–CA–168201, 19–CA–171176, and 19–CA–
171823
September 19, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND MCFERRAN
The General Counsel seeks a default judgment in this
case on the ground that the Respondent failed to file an
answer to the consolidated complaint. Upon charges and
an amended charge filed by Operative Plasterers’ and
Cement Masons’ Union, Local 528, affiliated with Oper-
ative Plasterers’ and Cement Masons’ International As-
sociation, AFL–CIO (the Union) on various dates be-
tween January 15 and March 14 2016, the General Coun-
sel issued an order consolidating cases, consolidated
complaint and notice of hearing on May 31, 2016,
against Kelaye Concrete LLC (the Respondent), alleging
that it has violated Section 8(a)(1), (3), and (5), within
the meaning of Section 8 (d) of the Act. The Respondent
failed to file an answer.
On July 1, 2016, the General Counsel filed with the
National Labor Relations Board a Motion to Transfer
Case to the Board for Default Judgment. Thereafter, on
July 7, 2016, the Board issued an order transferring the
proceeding to the Board and a Notice to Show Cause
why the motion should not be granted. On July 19, 2016,
the General Counsel submitted a statement in further
support of the motion. The Respondent filed no re-
sponse. The allegations in the motion are therefore un-
disputed.
On the entire record, the National Labor Relations
Board makes the following
Ruling on Motion for Default Judgment
Section 102.20 of the Board’s Rules and Regulations
provides that the allegations in a 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-
tively stated that unless an answer was received by June
14, 2016, the Board may find, pursuant to a motion for
default judgment, that the allegations in the complaint
are true. Further, the undisputed allegations in the Gen-
eral Counsel’s motion disclose that the Region, by letter
and email dated June 17, 2016, advised the Respondent
that unless an answer was received by June 24, 2016, a
motion for default judgment would be filed. Neverthe-
less, the Respondent failed to file an answer.
In the absence of good cause being shown for the fail-
ure to file an answer, we deem the allegations of the con-
solidated complaint 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 State of Ore-
gon limited liability corporation with operations in the
State of Washington, has been engaged in the construc-
tion business.
During the 12 months preceding issuance of the com-
plaint, the Respondent received gross revenues valued in
excess of $500,000, and purchased and received goods
within the State of Washington valued in excess of
$50,000 directly from suppliers outside of the State of
Washington.
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:
Rebecca Williams Owner
Russ Williams Owner’s husband
Katie Conrad Bookkeeper/office manager
Jason Krause Supervisor
Shawn Roberts Supervisor
The following employees of the Respondent (the unit)
constitute a unit appropriate for the purpose of collective
bargaining within the meaning of Section 9(b) of the Act:
All cement masons’ work to be done at the site of the
construction, alteration, painting or repair of a building,
structure, or other work in the following counties in the
State of Washington: Clalum, Cowlitz, Grays Harbor,
Island, Jefferson, King, Kitsap, Lewis, Mason, Pacific,
San Juan, Skagit, Snohomish, Thurston, and Whatcom.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
About May 15, 2015, the Respondent, an employer
engaged in the building and construction industry, en-
tered into a compliance agreement whereby it agreed to
be bound by the collective-bargaining agreement be-
tween the Union and individual members of the Associ-
ated General Contractors of Washington effective from
June 1, 2015 to May 31, 2018, and agreed to be bound to
future agreements unless timely notice was given. By
entering into the agreement described above, the Re-
spondent recognized the Union as the exclusive collec-
tive-bargaining representative of the unit without regard
to whether the Union’s majority status had ever been
established under Section 9(a) of the Act.
1

The following events occurred, giving rise to these
proceedings.
1. In about mid-December 2015, the Respondent, by
Rebecca Williams, by telephone:
(a) threatened its employees that they would not be re-
hired if they were
Union; and
(b) threatened its employees that the Respondent was
seeking to go nonunion.
2. About December 11, 2015, the Respondent, by Russ
Williams, by telephone:
(a) interrogated its employees about their Union activi-
ties; and
(b) prohibited its employees from talking about the Un-
ion or benefits during work.
3. About January 14, 2016, the Respondent, by Re-
becca Williams, by telephone, interrogated employees
about their union status and/or support.
4. About January 15, 2016, the Respondent, by Katie
Conrad, by telephone, interrogated employees about their
union status and/or support.
5. About December 11, 2015, the Respondent dis-
charged and/or constructively discharged its employees
Dan Ellis, Geoff Hagedorn, Riley Kerle, and Wade
Kerle.

1 The complaint alleges that the Respondent is a construction indus-
try employer and that it granted recognition to the Union without regard
to whether the Union had established majority status. Accordingly, we
find that the relationship was entered into pursuant to Sec. 8(f) of the
Act and that the Union is therefore the limited 9(a) representative of the
unit employees for the period covered by the contract. See, e.g., A.S.B.
Cloture, Ltd., 313 NLRB 1012, 1012 fn. 2 (1994), citing Electri-Tech,
Inc., 306 NLRB 707, 707 fn. 2 (1992), and John Deklewa & Sons, 282
NLRB 1375 (1987), enfd. sub nom. Iron Workers Local 3 v. NLRB, 843
F. 2d 770 (3d Cir. 1988).
6. About January 18, 2016, the Respondent discharged
its employee Mikal Davenport.
7. The Respondent engaged in the conduct described
above in paragraphs 5 and 6 because Ellis, Hagedorn,
Riley Kerle, Wade Kerle, and Davenport joined and/or
supported the Union and engaged in concerted activities,
or were perceived by the Respondent as doing so, and to
discourage employees from engaging in these or other
protected, concerted activities.
8. Since about September 4, 2015, the Respondent
failed to pay employee benefits.
9. Since about September 4, 2015, the Respondent
failed to continue in effect all the terms and conditions of
the collective-bargaining agreement described above by
failing to pay employee benefits.
10. The subjects set forth above in paragraphs 8 and 9
relate to wages, hours, and other terms and conditions of
employment of the unit and are mandatory subjects for
the purposes of collective bargaining.
11. The Respondent engaged in the conduct described
above in paragraphs 8 and 9 without prior notice to the
Union and without affording the Union an opportunity to
bargain with the Respondent with respect to this conduct
and the effects of this conduct.
12. Respondent engaged in the conduct described
above in paragraph 9 without the Union’s consent.
13. As a result of the Respondent’s conduct described
above in paragraphs 8 through 12, in about December
2015, the Respondent constructively discharged its em-
ployee Jose Mendoza.
14. As a result of the Respondent’s conduct described
above in paragraphs 8 through 12, in about late February
2016, the Respondent constructively discharged its em-
ployee Brandon Martinson.
15. The Respondent engaged in the conduct described
above in paragraphs 8 and 9 because its employees
joined and/or supported the Union and engaged in con-
certed activities, or were perceived by the Respondent as
doing so, and to discourage employees from engaging in
these or other protected, concerted activities.
CONCLUSIONS OF LAW
1. By the conduct described above in paragraphs 1
through 4, the Respondent has been interfering with, re-
straining, and coercing 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 5
through 9 and 11 through 15, the Respondent has been
discriminating in regard to the hire or tenure or terms or
conditions of employment of its employees, thereby dis-
couraging membership in a labor organization in viola-
tion of Section 8(a)(3) and (1) of the Act.
KELAYE CONCRETE LLC 3
3. By the conduct described above in paragraphs 8
through 9 and 11 through 14, the Respondent has been
failing and refusing to bargain collectively and in good
faith with the limited exclusive collective-bargaining
representative of its employees within the meaning of
Section 8(d) of the Act in violation of Section 8(a)(5) and
(1) of the Act.
4. The Respondent’s unfair labor practices described
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 violated Section 8(a)(3) and
(1) by discharging and/or constructively discharging em-
ployees Dan Ellis, Geoff Hagedorn, Riley Kerle, Wade
Kerle, Mikal Davenport, Jose Mendoza, and Brandon
Martinson, we shall order the Respondent to offer them
full reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights or priv-
ileges previously enjoyed, and to make them whole for
any loss of earnings and other benefits suffered as a re-
sult of the discrimination against them.
Backpay shall be computed in accordance with F. W.
Woolworth Co., 90 NLRB 289 (1950), 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). In addition,
we shall order the Respondent to compensate Ellis,
Hagedorn, Riley Kerle, Wade Kerle, Davenport, Mendo-
za, and Martinson for any adverse tax consequences of
receiving lump-sum backpay awards, and file with the
Regional Director for Region 19, 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.
AdvoServ of New Jersey, Inc., 363 NLRB No. 143
(2016).
In accordance with our recent decision in King
Soopers, Inc., 364 NLRB No. 93 (2016), we shall also
order the Respondent to compensate Ellis, Hagedorn,
Riley Kerle, Wade Kerle, Davenport, Mendoza, and Mar-
tinson for their search-for-work and interim employment
expenses regardless of whether those expenses exceed
interim earnings. Search-for-work and interim employ-
ment expenses shall be calculated separately from taxa-
ble net backpay, with interest at the rate prescribed in
New Horizons, supra, compounded daily as prescribed in
Kentucky River Medical Center, supra.2
Further, the Respondent shall be required to remove
from its files any and all references to the unlawful dis-
charges and/or constructive discharges of these employ-
ees, and to notify them in writing that this has been done
and that the discharges and/or constructive discharges
will not be used against them in any way.
Having found that the Respondent violated Section
8(a)(5), (3), and (1) of the Act by failing to continue in
effect all of the terms and conditions of the collective-
bargaining agreement described above by failing to pay
employee benefits, we shall order the Respondent to
honor and abide by the terms of the agreement, and any
automatic extension or renewal thereof, and to make the
unit employees whole for any loss of earnings and other
benefits they may have suffered as a result of the Re-
spondent’s unlawful conduct, 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, supra, compounded daily as
prescribed in Kentucky River Medical Center, supra.
ORDER
The National Labor Relations Board orders that the
Respondent, Kelaye Concrete LLC, Boring, Oregon, its
officers, agents, successors, and assigns shall
1. Cease and desist from
(a) Threatening employees that they would not be re-
hired if they were Union supporters and/or members.
(b) Threatening employees by stating that it was seek-
ing to go nonunion.
(c) Coercively interrogating employees about their un-
ion membership, activities, sympathies, and/or support.
(d) Prohibiting employees from talking about the Un-
ion or benefits during work.
(e) Discharging or constructively discharging employ-
ees because they engaged in, or are perceived to have
engaged in, union and other protected concerted activi-
ties, and to discourage employees from engaging in such
activities.
(f) Failing and refusing to bargain collectively and in
good faith with Operative Plasterers’ and Cement Ma-
sons’ Union, Local 528, affiliated with Operative Plas-
terers’ and Cement Masons’ International Association,
AFL–CIO as the limited exclusive collective-bargaining
representative of the employees in the following unit, by
failing to continue in effect all the terms and conditions

2 For the reasons stated in his separate opinion in King Soopers, 364
NLRB No. 93, slip op. at 9–16, Member Miscimarra would adhere to
the Board’s former approach, treating search-for-work and interim
employment expenses as an offset against interim earnings.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
of employment provided for in the June 1, 2015— May
31, 2018 collective-bargaining agreement between the
Union and individual members of the Associated General
Contractors of Washington, and any automatic renewal
or extension of it, by failing to pay employee benefits.
The unit is:
All cement masons' work to be done at the site of the
construction, alteration, painting or repair of a building,
structure, or other work in the following counties in the
State of Washington: Clalum, Cowlitz, Grays Harbor,
Island, Jefferson, King, Kitsap, Lewis, Mason, Pacific,
San Juan, Skagit, Snohomish, Thurston, and Whatcom.
(g) Failing to continue in effect all the terms and con-
ditions of employment provided for in the collective-
bargaining agreement described above by failing to pay
employee benefits because its employees supported the
Union and/or engaged in other protected concerted ac-
tivities, or were perceived by the Respondent as doing
so, and to discourage employees from engaging in such
activities.
(h) Constructively discharging employees because of
its failure to continue in effect all the terms and condi-
tions of employment provided for in the collective-
bargaining agreement described above by failing to pay
employee benefits.
(i) 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) Within 14 days from the date of this Order, offer
employees Dan Ellis, Geoff Hagedorn, Riley Kerle,
Wade Kerle, Mikal Davenport, Jose Mendoza, and Bran-
don Martinson full reinstatement to their former jobs or,
if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any oth-
er rights or privileges previously enjoyed.
(b) Make employees Dan Ellis, Geoff Hagedorn, Ri-
ley Kerle, Wade Kerle, Mikal Davenport, Jose Mendoza,
and Brandon Martinson whole for any loss of earnings
and other benefits suffered as a result of the discrimina-
tion against them, in the manner set forth in the remedy
section of this decision.
(c) Within 14 days from the date of this Order, re-
move from their files any reference to the unlawful dis-
charges and/or constructive discharges, and within 3 days
thereafter, notify the employees in writing that this has
been done and that the discharges and/or constructive
discharges will not be used against them in any way.
(d) On request, bargain with the Union as the limited
exclusive collective-bargaining representative of the unit.
(e) Honor and comply with the terms of the June 1,
2015—May 31, 2018 collective-bargaining agreement
between the Union and individual members of the Asso-
ciated General Contractors of Washington and any auto-
matic renewal or extension of it, including by paying
employee benefits.
(f) Make employees whole for any loss of earnings
and other benefits suffered as a result of its failure to pay
employee benefits since September 4, 2015, with inter-
est, in the manner set forth in the remedy section of this
decision.
(g) Compensate Dan Ellis, Geoff Hagedorn, Riley
Kerle, Wade Kerle, Mikal Davenport, Jose Mendoza,
Brandon Martinson, and any affected unit employees
who receive backpay as a result of the Respondent’s un-
lawful changes in terms and conditions of employment,
for the adverse tax consequences, if any, of receiving
lump-sum backpay awards, and file with the Regional
Director for Region 19, 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 calendar year for each employee.
(h) 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-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(i) Within 14 days after service by the Region, post at
its Washington facilities copies of the attached notice
marked “Appendix.”3 Copies of the notice, on forms
provided by the Regional Director for Region 19, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places, including
all places where notices to employees are customarily
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 customarily
communicates with its employees by such means. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material. If the Respondent has gone out of

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.”
KELAYE CONCRETE LLC 5
business or closed the facilities involved in these pro-
ceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employ-
ees and former employees employed by the Respondent
at any time since September 4, 2014.
(j) Within 21 days after service by the Region, file
with the Regional Director for Region 19 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. September 19, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Philip A. Miscimarra Member
______________________________________
Lauren McFerran, 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 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
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 threaten you that you will not be rehired
if you were Union supporters and/or members.
WE WILL NOT threaten you by stating that we are seek-
ing to go nonunion.
WE WILL NOT coercively interrogate you about your
union membership, activities, sympathies, and/or sup-
port.
WE WILL NOT prohibit you from talking about the Un-
ion or benefits during work.
WE WILL NOT discharge or constructively discharge
you because you have engaged in, or are perceived to
have engaged in, union and other protected concerted
activities, and to discourage employees from engaging in
such activities.
WE WILL NOT fail and refuse to bargain collectively
and in good faith with Operative Plasterers’ and Cement
Masons’ Union, Local 528, affiliated with Operative
Plasterers’ and Cement Masons’ International Associa-
tion, AFL–CIO as the limited exclusive collective-
bargaining representative of our employees in the follow-
ing unit by failing to continue in effect all the terms and
conditions of employment in the June 1, 2015—May 31,
2018 collective-bargaining agreement, and any automatic
renewal or extension of it, by failing to pay employee
benefits. The unit is:
All cement masons' work to be done at the site of the
construction, alteration, painting or repair of a building,
structure, or other work in the following counties in the
State of Washington: Clalum, Cowlitz, Grays Harbor,
Island, Jefferson, King, Kitsap, Lewis, Mason, Pacific,
San Juan, Skagit, Snohomish, Thurston, and Whatcom.
WE WILL NOT fail to continue in effect all the terms
and conditions of employment in the June 1, 2015—May
31, 2018 collective-bargaining agreement by failing to
pay employee benefits to the unit employees described
above because our employees supported the Union
and/or engaged in other protected concerted activities, or
were perceived by us as doing so, and to discourage em-
ployees from engaging in such activities.
WE WILL NOT constructively discharge any of you be-
cause of our failure to continue in effect all the terms and
conditions of employment provided for in the June 1,
2015—May 31, 2018 collective-bargaining agreement by
failing to pay employee benefits.
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, within 14 days from the date of this Order,
offer employees Dan Ellis, Geoff Hagedorn, Riley Kerle,
Wade Kerle, Mikal Davenport, Jose Mendoza, and Bran-
don Martinson full reinstatement to their former jobs or,
if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any oth-
er rights or privileges previously enjoyed.
WE WILL make employees Dan Ellis, Geoff Hagedorn,
Riley Kerle, Wade Kerle, Mikal Davenport, Jose Mendo-
za, and Brandon Martinson whole for any loss of earn-
ings and other benefits suffered as a result of the discrim-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
ination against them, less any net interim earnings, plus
interest, plus reasonable search-for-work and interim
employment expenses.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharges and/or constructive discharges, and WE
WILL, within 3 days thereafter, notify each employee in
writing that this has been done and that the discharges
and/or constructive discharges will not be used against
them in any way.
WE WILL, on request, bargain with the Union as the
limited exclusive collective-bargaining representative of
the unit.
WE WILL honor and comply with the terms of the June
1, 2015—May 31, 2018 collective-bargaining agreement
between the Union and individual members of the Asso-
ciated General Contractors of Washington and any auto-
matic renewal or extension of it.
WE WILL make employees whole for any loss of earn-
ings and other benefits suffered as a result of our failure
to pay employee benefits since September 4, 2015, with
interest.
WE WILL compensate Dan Ellis, Geoff Hagedorn, Ri-
ley Kerle, Wade Kerle, Mikal Davenport, Jose Mendoza,
Brandon Martinson, and any affected unit employees
who receives backpay as a result of our unlawful changes
in terms and conditions of employment, for the adverse
tax consequences, if any, of receiving lump-sum backpay
awards, and WE WILL file with the Regional Director for
Region 19, within 21 days from the date the amount of
backpay is fixed, either by agreement or Board order, a
report allocating the backpay award to the appropriate
calendar year for each employee.
KELAYE CONCRETE LLC
The Board’s decision can be found at
www.nlrb.gov/case/19–CA–168201 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor Re-
lations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940.