Prime Protective, Inc.

National Labor Relations Board - Board Decisions

Apr 22, 2014

360 NLRB No. 81 (N.L.R.B. 2014)

360 NLRB No. 81
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.
Prime Protective, Inc. and Special and Superior Of-
ficers Benevolent Association. Case 29–CA–
116082
April 22, 2014
DECISION AND ORDER
BY MEMBERS MISCIMARRA, HIROZAWA,
AND JOHNSON
The General Counsel seeks a default judgment in this
case on the ground that Prime Protective, Inc. (the Re-
spondent) has failed to file an answer to the complaint.
Upon a charge and a first amended charge filed on Octo-
ber 28 and December 12, 2013, respectively, by Special
and Superior Officers Benevolent Association (the Un-
ion), the General Counsel issued the complaint on Janu-
ary 7, 2014, alleging that the Respondent has violated
Section 8(a)(5) and (1) of the Act. The Respondent
failed to file an answer.
On February 11, 2014, the General Counsel filed a
Motion for Default Judgment with the Board. Thereaf-
ter, on February 12, 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 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
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 complaint affirmatively stated
that unless an answer was received by the Regional Of-
fice by January 22, 2014, the Board may find, pursuant
to a motion for default judgment, that the allegations in
the complaint are true. Further, the undisputed allega-
tions in the General Counsel’s motion disclose that the
Region, by letter dated January 28, 2014, notified the
Respondent that unless an answer was received by Feb-
ruary 4, 2014, a motion for default judgment would be
filed. Nevertheless, the Respondent failed to file an an-
swer.
In the absence of good cause being shown for the fail-
ure to file an answer, 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 do-
mestic corporation with an office and place of business
located at 26 Court Street, Suite 709, Brooklyn, New
York, and has been providing security guard services to
various customers located in New York City.
Annually, in conducting its business operations de-
scribed above, the Respondent performed services valued
in excess of $50,000 for Lawrence Nursing Care Center
and Telco Stores, enterprises within the State of New
York which are directly engaged in interstate commerce.
We find that the Respondent has been an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act and that the Union has been a la-
bor organization within the meaning of Section 2(5) of
the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times, Terry English held the position
of the Respondent’s president and chief executive officer
and has been an agent of the Respondent within the
meaning of Section 2(13) of the Act.
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 regular part time uniform guards em-
ployed by Respondent, except management and client
supervisors.
Since at least January 2013 and at all material times,
the Respondent has recognized the Union as the exclu-
sive collective-bargaining representative of the unit.
This recognition has been embodied in successive collec-
tive-bargaining agreements, the most recent of which is
effective from June 1, 2013 to May 31, 2014 (the agree-
ment).
At all material times since January 1, 2013, the Union
has been the exclusive collective-bargaining representa-
tive of the unit.
Since at least June 1, 2013, the Respondent failed to
continue in effect all the terms and conditions of the
agreement by:
(a) failing to forward to the Union monthly dues pay-
ments automatically deducted from employees’
paychecks;
(b) failing to make monthly contributions to the Special
and Superior Officers Benevolent Association Welfare
Fund; and
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
(c) failing to provide vacation pay to certain employees.
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.
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 within the meaning of Section
8(d) of the Act, in violation of Section 8(a)(5) and (1) of
the Act. The unfair labor practices of the Respondent
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 to continue in effect all the terms and
conditions of the agreement by failing, since about June
1, 2013, to forward to the Union monthly dues payments
automatically deducted from employees’ paychecks, we
shall order the Respondent to remit to the Union the dues
it failed to remit, with interest at the rate prescribed in
New Horizons for the Retarded, 283 NLRB 1171 (1987),
compounded daily as prescribed in Kentucky River Medi-
cal Center, 356 NLRB No. 8 (2010).
Additionally, having found that the Respondent violat-
ed Section 8(a)(5) and (1) by failing to continue in effect
all the terms and conditions of the agreement by failing,
since about June 1, 2013, to make monthly contributions
to the Special and Superior Officers Benevolent Associa-
tion Welfare Fund, we shall order the Respondent to
make all such delinquent contributions, including any
additional amounts due the funds in accordance with
Merryweather Optical Co., 240 NLRB 1213, 1216 fn. 7
(1979). We shall also order the Respondent to reimburse
unit employees for any expenses ensuing from its failure
to make the contractually-required contributions, as set
forth in Kraft Plumbing & Heating, 252 NLRB 891, 891
fn. 2 (1980), enfd. mem. 661 F.2d 940 (9th Cir. 1981),
such amounts to be computed 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 pre-
scribed in New Horizons for the Retarded, supra, com-
pounded daily as prescribed in Kentucky River Medical
Center, supra.1
Further, having found that the Respondent has violated
Section 8(a)(5) and (1) by failing to continue in effect all
the terms and conditions of the agreement by failing,
since about June 1, 2013, to pay certain employees their
accrued vacation pay, we shall order the Respondent to
make the affected unit employees whole for any loss of
earnings and other benefits attributable to its unlawful
conduct. Backpay shall be computed in accordance with
Ogle Protection Service, 183 NLRB 682 (1970), enfd.
444 F.2d 502 (6th Cir. 1971), with interest at the rate
prescribed in New Horizons for the Retarded, supra,
compounded daily as prescribed in Kentucky River Medi-
cal Center, supra, and minus tax withholding required by
Federal and State laws.
In addition, we shall order the Respondent to compen-
sate the affected unit employees for the adverse tax con-
sequences, if any, of receiving lump-sum backpay
awards and to file a report with the Social Security Ad-
ministration allocating the backpay awards to the appro-
priate calendar quarters for unit employees.
ORDER
The National Labor Relations Board orders that the
Respondent, Prime Protective, Inc., Brooklyn, New
York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain collectively and in
good faith with Special and Superior Officers Benevolent
Association (the Union) as the exclusive collective-
bargaining representative of the employees in the follow-
ing unit by failing to continue in effect all the terms and
conditions of employment of the unit as set forth in the
June 1, 2013 to May 31, 2014 collective-bargaining
agreement by failing to forward to the Union monthly
dues payments automatically deducted from employees’
paychecks; failing to make monthly contributions to the
Special and Superior Officers Benevolent Association
Welfare Fund; and failing to provide vacation pay to
certain employees. The appropriate unit is:
All full time and regular part time uniform guards em-
ployed by Respondent, except management and client
supervisors.

1 To the extent that an employee has made personal contributions to
the fund that are accepted by the fund in lieu of the Respondent’s de-
linquent contributions during the period of the delinquency, the Re-
spondent will reimburse the employee, but the amount of such reim-
bursement will constitute a setoff to the amount that the Respondent
otherwise owes to the fund.
PRIME PROTECTIVE, INC. 3
(b) 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) Remit to the Union, as provided in the parties’
2013–2014 collective-bargaining agreement, monthly
dues deducted from employees’ paychecks that have not
been remitted since June 1, 2013, with interest, in the
manner set forth in the remedy section of this decision.
(b) Make all monthly contributions that have not been
made since June 1, 2013, to the Special and Superior
Officers Benevolent Association on behalf of unit em-
ployees as provided in the parties’ 2013–2014 agree-
ment, with interest in the manner set forth in the remedy
section of this decision, including any additional amounts
due the fund, and make whole the unit employees for any
expenses ensuing from the failure to make the fund con-
tributions, with interest, as set forth in the remedy section
of this decision.
(c) Make the affected employees whole for its failure
to provide them accrued vacation pay, by paying them
the amounts it failed to pay, with interest, as set forth in
the remedy section of this decision.
(d) Compensate the affected employees for the ad-
verse tax consequences, if any, of receiving lump-sum
backpay awards, and file a report with the Social Securi-
ty Administration allocating the backpay award to the
appropriate calendar quarters for each employee.
(e) 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 vacation pay due
under the terms of this Order.
(f) Within 14 days after service by the Region, post at
its facility in Brooklyn, New York, copies of the attached
notice marked “Appendix.”2 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

2 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.”
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
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 June 1, 2013.
(g) 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. April 22, 2014
Philip A. Miscimarra, Member
Kent Y. Hirozawa, Member
Harry I. Johnson, III, 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 collectively
and in good faith with Special and Superior Officers Be-
nevolent Association (the Union) as the exclusive collec-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
tive-bargaining representative of our employees in the
following appropriate unit by failing to continue in effect
all the terms and conditions of employment as set forth in
our June 1, 2013, to May 31, 2014 collective-bargaining
agreement, by failing to forward to the Union monthly
dues payments automatically deducted from employees
paychecks; failing to make monthly contributions to the
Special and Superior Officers Benevolent Association
Welfare Fund; and failing to provide vacation pay to
certain employees. The appropriate unit is:
All full-time and regular part-time uniform guards em-
ployed by us except management and client supervi-
sors.
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 remit to the Union the dues deducted from
employees’ paychecks pursuant to our 2013–2014 collec-
tive-bargaining agreement, plus interest.
WE WILL make all monthly contributions that we have
failed to make to the Union’s Special and Superior Of-
ficers Benevolent Association on behalf of unit employ-
ees pursuant to our 2013–2014 collective-bargaining
agreement, plus interest.
WE WILL make the affected employees whole for our
failure to pay them their accrued vacation pay pursuant to
our 2013–2014 collective-bargaining agreement, plus
interest.
WE WILL compensate the affected employees for the
adverse tax consequences, if any, of receiving a lump-
sum award of vacation pay, and WE WILL file a report
with the Social Security Administration allocating the
accrued vacation pay awards to appropriate calendar
quarters for each employee.
PRIME PROTECTIVE, INC.